Treaty Scrutiny in Westminster (International Agreements Committee Report)

Lord Fox Excerpts

Monday 16th March 2026 Grand Committee

[Lord Fox (LD)]

My Lords, it is a real pleasure to follow that speech, which was a useful and authoritative view on this topic. I will attempt to sum up some of the issues, but I will first make a couple of observations.

First, since the change in the machinery of government in the last Parliament, the focus of the equivalent committee in the House of Commons has been very much dimmed. Now that it is a Business and Trade Committee, it is absorbed in a whole range of issues and cannot focus on trade as it did. Your Lordships’ committee has been carrying the lantern on this since that change.

I will not comment on many contributions. I thank the noble Lord, Lord Lilley, for reminding me what I had been missing since I last heard him speak. On the comments of the noble Baroness, Lady Lawlor, when on a committee we have an opportunity to debate the terms of reference; there is a full opportunity for every member to affect and change them and to suggest or insist on—if they want to—particular witnesses. I feel that there is room to scrutinise.

We wait for an International Agreements Committee debate and then two come along within a week. It gives us a final chance to thank our now retired chairman for his work, as well as all my colleagues. This will be my last time speaking as an alumnus of the committee. It is an important committee and I am very encouraged that the new chair, the noble Lord, Lord Johnson, is embracing many of the themes of this report.

It was clear from the evidence we received that the Constitutional Reform and Governance Act 2010 offers too little to the legislature while the Executive hold most, if not all, of the cards. If nothing else comes from this debate, I hope that the Minister will develop some empathy for the challenge this committee has in delivering useful information to the Executive. That is what we seek to do, along the lines that the noble Lord, Lord Norton, suggested.

In truth, I felt that many of the recommendations in this report were modest. We are suggesting evolution rather than revolution, and clearly the Government’s response was disappointing, but I will come to that. I will just go through some of the issues that were raised.

First, the committee’s well-worked justification for flexibility of scrutiny time seems reasonable to me. Your Lordships heard that we recommended that the Government should normally agree to any reasoned IAC request for a single extension of the 21-day CRaG period for significant treaties and should refuse only where they can give operational reasons. Of course, there are sometimes justifiable operational reasons for something to be done within a certain time. To date, the Government have rarely used their power to extend the 21-day CRaG scrutiny period for significant treaties, despite IAC calls for automatic or reasoned extensions.

The quality of our reports is directly linked to the time that we have to make them, and the number and variety of witnesses that we can call and hear. Nothing about the amount of time that we have has significantly changed since Ponsonby. I remind your Lordships that we are talking about the 1920s, not the current noble Lord, Lord Ponsonby. But here, as others have, we should credit the noble Lord, Lord Grimstone, and indeed the noble Lord, Lord Stevenson, for chivvying him. I was on the equivalent Front Bench pushing at the same time, and things have improved as a result of the modifications that the noble Lord, Lord Grimstone, brought forward—we have had access to documentation prior to discussion of free trade agreements—but I remind noble Lords, as our retiring chairman said, that this covers only FTAs, not other significant treaties. They are equally—sometimes more—in need of extra time to get the input that the committee needs to give them proper consideration. We need to get that evidence and we need time to consider it, irrespective of whether the treaty is an FTA or a significant other treaty.

The excuse given is that scrutiny of implementing legislation is somehow a meaningful proxy for scrutiny of the original treaty. Even when there is such legislation, this is simply wrong. In that regard, I cite the Chagos treaty: the International Agreements Committee was unable to get the time we needed to give that treaty real scrutiny. We could not get witnesses; we just did not have time. Had we had time, we could have produced a much more comprehensive and useful report, which the noble Baroness and her colleagues might have used to avoid some of the problems that have appeared in the paving legislation following that treaty. The committee is a utility that the Government can use to look in advance at the sort of problems that might arise in paving legislation, before that legislation is actually framed.

In looking at the longer-term legislative reform of CRaG for significant treaties, particularly trade agreements, I am clear that there should be a requirement for positive parliamentary consent before ratification, rather than relying on the current and never-used power to delay. I note in passing that even the theoretical power of delay relies on the Commons getting time in the House to have that debate, which we know is not a guarantee; indeed, it has not happened in significant cases.

We have heard about treaty explanatory memorandums, and I am grateful to the noble Lord, Lord Norton, because I did not know about that piece of work, which he just told us about. Treaty explanatory memorandums should be upgraded and they should clearly explain why the Government believe that the treaty should be ratified, including its impacts and policy rationale. These should also be extended to encompass the roles of the devolved authorities—a point that my noble friend made.

As we have heard, there has also been an increasing creativity when it comes to making agreements that are not treaties under CRaG, thus avoiding proper process altogether. These are primarily through a memorandum of understanding, but also through manipulating the actual process itself. This takes, in essence, a huge body of important work out of scrutiny at all. An example of that is the agreement on pharmaceutical policy with the United States of America. It is an agreement and it has far-reaching powers over our NHS, but it received absolutely no scrutiny whatever because it is not within CRaG. That is a very good example of when important things are pushed through without the scrutiny that they need. We have to move from the Executive-dominated system to one where Parliament can shape things along the lines suggested by the noble Lord, Lord Lilley—mandates are something that we discussed a lot when I was on that committee—and properly scrutinise them when they come to us.

Given the importance of this, the Government’s response was all the more disappointing. The response to our report is, in essence, cursory, and I thought the spoofing of it by the noble Lord, Lord Anderson, was uncanny in its accuracy. The only thing it did not add was consultations, which I think is the other issue. This response is fobbing off what we wrote—I am afraid to have to say that—and it fails to address the core findings of the inadequate scrutiny time, poor information-sharing and excessive executive discretion. At no point do the Government respond to the core criticisms levelled by the IAC and experts such as the Hansard Society that demonstrate how the process tilts far too much towards government lagging behind international standards, as was made. We should not be surprised.

Similar reports making similar criticisms have received about the same length of shrift from the Government of the day since 2011 or 2014: each has found a way of rejecting mandatory votes; rejected central repositories for non-binding instruments or broader reforms, such as a debate on mandates; and sought to prioritise so-called agility over enhanced scrutiny. I should be downhearted about this Government’s engagement with this report—and I am—but it seems to be a law of nature that any Government, of whatever stripe, will seek to avoid the purview of any part of the legislature. Perhaps this is the time for a Government to kick against what seems to be ingrained DNA in the process.

I say to the Minister that the issues laid out in this report are important. Parliamentary scrutiny should be there to help government work and it should be there for the process of democratic scrutiny. I hope that she will rethink the Government’s response and embrace the spirit, if not the letter, of this report.