Ben Kingsley
Strategic Legal Affairs, UsForThem

Steve Brine MP
Chair, Health and Social Care Committee House of Commons

By email

13 September 2023

Dear Mr Brine,

The WHO Pandemic Treaty and the International Health Regulations

Your letter to Rt Hon Steve Barclay MP of 4 July 2023 on the above topic was a welcome intervention in an otherwise neglected and opaque inter-governmental negotiation process.
Mr Barclay’s recently published response dated 31 July 2023, however, is astonishingly evasive of your questions, and apparently casually disregarding of the role of your Committee and of Parliament. His officials appear to have taken you for a fool, which we hope you will dispel with vigour.

Your first question to the Minister

You asked the Minister to clarify the ratification process for both measures and to confirm whether the Government will seek Parliament’s consent for ratification.
The Minister has not answered your question, presumably because he could not give a palatable answer. He could not answer your question candidly for the following reasons:
1. Between now and December, inter-governmental negotiations will finalise the Treaty, and a WHO working group will finalise the IHR amendments. Both documents will then be published at the start of 2024 and member states will then be asked to adopt them at the May 2024 World Health Assembly meeting.
2. Assuming that the Treaty is adopted in May (by a vote of at least two thirds of WHO members in favour), it will then be subject to ratification in the UK and other member states. The Constitutional Reform and Governance Act 2010 does not oblige the Government to seek Parliament’s consent to ratify, though in principle it would permit Parliament to delay the Treaty’s ratification by means of a vote in the House.
3. So the House, and indeed your Committee, might in principle have time to scrutinise the text of the adopted Treaty before it is ratified and becomes binding on the UK, but this relies on the Government giving parliamentary time for a debate and vote. The Minister’s silence on this point in his response to you suggests that at present there is no intention to afford Parliament that courtesy.
4. Even if a debate is allowed, the window for that opportunity is likely to be brief and — most importantly — the options for Parliament at that stage will be limited either to accepting the Treaty or to demanding that the Government opt out (and this would be after the UK had already signalled its intent to ratify by signing the Treaty). Amendments could not be made to the Treaty during a ratification process.
5. Meanwhile the IHR amendments will become binding on the UK following a simple majority vote of member states in favour at the May 2024 WHA meeting. No further national ratification or procedural steps would be required as a legal matter. At that point Parliament’s only remaining option would be to demand on its own initiative (within 10 months of May 2024, during which period there is likely to be a General Election) that the Government reject the
amendments or seek a derogation. We can all appreciate that the chances of this happening are slim to none.

Presumably in an attempt to pull wool over your eyes, reference is made to the UK’s ratification of the Treaty “in accordance with its constitutional process”, but conspicuously stops short of explaining to you what that means in practice, as set out above.

Consequently the candid answer to your constitutionally vital question would have been:

Parliament is not entitled to any formal role in the ratification process for the Treaty. The Government could decide to seek Parliament’s consent before ratification, but at present there is no plan to do so. There will be no ratification process for the IHR amendments.

To avoid acknowledging this uncomfortable reality, the Minister has instead provided you with an answer to the less tricky question ‘To what extent will Parliament have any involvement in the process of implementing the accords once they are agreed?’.

The answer to that question, as the Minister has explained, is that Parliament will need to debate and vote on any domestic legislation which becomes necessary to give effect to the UK’s binding international legal obligations. But the UK would by then already have become committed, and Parliament would have had no opportunity to scrutinise or influence that deal.

Your second question to the Minister

You asked whether the Minister would commit to providing your committee with regular updates on the progress of the negotiations. The Minister has offered to provide written updates on a quarterly basis. It is now mid-September and, as noted above, the official WHO timeline anticipates the negotiations being completed by December, meaning at best one update could be provided, and too late to give your Committee an opportunity to apply any meaningful scrutiny to the UK’s negotiation position. The strong inference from this proposal is that DHSC officials would rather keep Parliamentarians out of their way.

Your penultimate question to the Minister

You asked about the potentially very significant public spending commitments provided for in the draft Treaty. Addressing your question narrowly, rather than acknowledging its obvious aim to understand the economic significance of the obligations under negotiation, the Minister points out that the relevant provision to which you had referred has now been removed and no longer appears in an interim negotiating draft of the Treaty dated 2 June 2023, described as the Bureau’s Text.[1]
The Minister did not see fit to mention, however, that the Bureau’s Text continues to include, in particular at draft Article 19, less specific but nevertheless fiscally significant obligations for each member state to finance domestic and international pandemic preparedness and prevention initiatives, including a commitment to provide financial support to other countries at the WHO’s request.
The best the Minister could offer you on the quantification of taxpayer costs for these Treaty obligations was a metaphorical shoulder shrug: it is “very hard to provide a single figure”. It is staggering that the Minister and his officials feel able to dismiss your question in such a casually condescending manner.

Your final question to the Minister
You asked what assessment has been made of the impact of the proposed new Treaty on England’s health and care system. It is trite to reiterate that the Treaty and the IHR amendments have not yet been agreed, as the Minister patronisingly reminded you; but it will not have escaped your attention that the Minister seemed unwilling to provide a straightforward answer to your
straightforward question. One must infer from his attempt to avoid your question by means of a distraction with superficial commentary on the UK’s national interests, that no attempt to assess the impact has yet been made, or that any such assessment is too negative to allow it into the public domain.

We are relying on your Committee

Mr Brine, this attempt to avoid or deflect your questions speaks volumes. At present it is entirely in the hands of the Government to decide whether and when to accept that these two important draft international accords have become final from the UK’s perspective, and to commit the UK by signing them.
The point of your letter was not to ask whether the UK Government will have options to renege on its legal obligations once committed — plainly that is not how the UK aspires to conduct itself — but rather to understand what role your committee, and Parliament, can play in shaping the terms of the UK’s accession to new international legal obligations of inter-generational significance.
The Minister’s response confirms that Parliament will have no influence over this process unless it asserts a role for itself now. It is critical that the officials representing the UK’s interests at the negotiating tables understand Parliament’s appetite and expectations in advance of finalising any text, and your Committee has a key role to play in this regard if it is not deflected by the Minister and his officials.
We implore you to call before your Committee both the Minister and the senior officials at DHSC and FCDO leading the UK’s teams for each of the Treaty negotiations and the IHR negotiations so that they can be asked to provide more accurate oral responses to the questions you have asked, and so that Parliament through your Committee can bring to this process the transparency, scrutiny and democratic legitimacy that is now urgently needed.

Copies to:

Rt Hon Steve Barclay MP, Secretary of State

Paul Blomfield MP

Martyn Day MP

Mrs Paulette Hamilton MP

Rachael Maskell MP

Taiwo Owatemi MP

Lucy Allan MP

Paul Bristow MP

Chris Green MP

Dr Caroline Johnson MP

James Morris MP

hsccom@parliament.uk

Yours sincerely,

Ben Kingsley
For UsForThem