Treaty Scrutiny in Westminster (International Agreements Committee Report)

Lord Goldsmith Excerpts

Monday 16th March 2026 Grand Committee

Moved by

[Lord Goldsmith]

That the Grand Committee takes note of the Report from the International Agreements Committee Treaty Scrutiny in Westminster: Addressing the Accountability Gap (10th Report, HL Paper 168).

[Lord Goldsmith (Lab)]

My Lords, it is fitting that my final act as the outgoing chair of the International Agreements Committee is to open a debate about the process of treaty scrutiny in Parliament. I am delighted to see that so many present and past members of the committee will take part today.

The inquiry we launched last year was designed to take stock of how scrutiny has operated in the committee’s first five years. Our conclusion, in short, is that the current framework for treaty scrutiny under CRaG is, to quote one of our witnesses,

“a weak and insufficient mechanism for securing meaningful accountability”.

I will briefly address the main reasons leading to that conclusion.

As many will know, the framework for treaty scrutiny is set out in Part 2 of the Constitutional Reform and Governance Act, commonly known as CRaG. This legislation gives both Houses of Parliament 21 joint sitting days to consider a treaty and decide whether to vote against ratification. This process has not fundamentally changed in 100 years.

The first issue is that the CRaG process does not allow enough time for scrutiny. It is frankly impossible to conduct an in-depth, evidence-based review of a significant treaty within the 21-day CRaG deadline. Remember, this deadline is for Parliament to debate and vote on the treaty; the International Agreements Committee and its officials have even less time to produce their report for Members of the House to consider ahead of a debate. Your Lordships will appreciate that such a rapid timescale takes no account of what is involved in proper parliamentary scrutiny, in particular the evidence gathering.

Most treaties laid in Parliament do not require detailed scrutiny, because they are routine or technical, but the minority of significant treaties deserve more attention than the timetable under CRaG allows. The Government have accepted that some important treaties merit more time. Since EU exit, Governments have, by concession, allowed Parliament more time to consider free trade agreements. Parliament typically has about three to four months to conduct an inquiry into a free trade agreement because, crucially, the International Agreements Committee receives the treaty text and explanatory documents after the agreement has been signed, but before the CRaG clock starts ticking. The recent debate—in this Room—on the comprehensive economic and trade agreement with India was the outcome of such an in-depth inquiry.

But free trade agreements are not the only type of treaty that warrant this kind of enhanced scrutiny. Significant multilateral agreements, such as the Paris climate change agreement or the new World Health Organization agreement on pandemic preparation, is one other obvious category. Then there are bilateral treaties where there is a high degree of public interest; recent examples include the Rwanda asylum partnership agreement and the agreement with Mauritius on the Chagos Archipelago.

In the trade space, your Lordships may not be aware that the enhanced scrutiny procedures that I have described apply only to treaties formally classified as free trade agreements and not to other potentially important trade agreements, such as mini-deals on digital trade, technology or critical minerals. Importantly, they also do not apply to understandings or commitments not included in formal treaties that need ratification, such as memoranda of understanding or the very important understandings on tariffs reached by His Majesty’s Government with the United States of America.

For important treaties that are not FTAs, the only mechanism to secure more time is to ask the Government for an extension of the 21-day period. But the Government have shown themselves reluctant to grant extensions, even in cases where they accept that the public interest is high and there is no urgency to ratify. The Chagos Islands agreement was such a case. I know there are strongly held opinions in this House and elsewhere about that agreement, but whatever differences Members may have on its merits, I hope we can all agree that the treaty deserved more detailed scrutiny than the CRaG process allowed. The IAC had just over three weeks to produce a report in time for the scheduled debate.

Our report asked the Government to make a commitment to accept a reasoned request from the IAC for a single extension of the scrutiny period of up to 21 days, unless there are compelling operational reasons to the contrary. We thought that a modest, eminently reasonable approach, and I regret that the Government’s response did not even directly address the proposal. They said that they need the flexibility to decline an extension but declined to state the specific circumstances in which that might be necessary. Since the committee’s proposal would not prevent the Government declining where there is clear reason to do so, I urge them to reconsider the committee’s request. I invite the Minister to take that away, if nothing else.

A second major problem with CRaG is that scrutiny is triggered by the form of an international agreement, rather than its substance. Some treaties are excluded from scrutiny entirely if they are not subject to ratification, or, the Government may choose—it often is a choice—to use a non-legally binding instrument to achieve their aims. Our report highlights research by the Commons Library which shows that, in relation to the expulsion of illegal migrants, the Home Office frequently chooses non-binding arrangements with third countries rather than treaties subject to CRaG scrutiny—as, indeed, we saw with the first stage of the Rwanda scheme; we pointed that out and the Government then reached a treaty. Even where a treaty is ratified and subject to CRaG, amendments to that treaty might be excluded from scrutiny. Everything depends on the process the Government choose to adopt, rather than the importance of the measures. This in itself creates an obvious scrutiny gap.

The third, and perhaps most fundamental, issue is that even when CRaG applies, the role of Parliament is very weak. The power of this House could be described, at best, as the power to ask the Government to think again about ratification. The Commons at least has the power to delay ratification, but that is more theoretical than real, as the Government have a tendency to refuse time for debate on treaties in the other House, and, without a debate, that recommendation to delay ratification cannot take binding effect.

The weakness of Parliament’s role in relation to treaties is in stark contrast to the position in most other countries. The vast majority of other countries require legislative consent for at least some treaties. This includes many countries with dualist constitutional systems similar to the UK’s, where treaties are not automatically part of domestic law. I do not know how many times I have heard it said that because we are dualist we do not need parliamentary scrutiny. That is completely untrue. Internationally, the UK is an outlier in relation to treaty scrutiny. During our debate on the India CETA, a number of noble Lords powerfully made the argument that the benefit of being able to say, “That will not wash in Westminster”, was of great value in trade negotiations.

At the risk of pre-empting my noble friend Lady Chapman’s reply, I will say a few words about the arguments that Governments of both parties have traditionally advanced to defend the status quo. First, it is said that the light-touch approach of CRaG is justified because Parliament gets to scrutinise treaty-implementing legislation. But scrutiny of implementing measures is not an effective substitute. Parliament needs to be able to look at a treaty as a whole, and the policy reasons underpinning it, but the policy is locked in by the time Parliament looks at implementing measures. Moreover, legislation may not even be required for a specific treaty and, when it is, the legislation is often limited to specific aspects.

Secondly, the Government say they need flexibility to strike deals in the national interest and that CRaG provides an appropriate balance between this flexibility and accountability to Parliament. That is patently not the case. The reality is that the CRaG Act gives the Government so much discretion at different stages of the process that the balance is skewed overwhelmingly in the Government’s favour. Paragraph 46 of our report lists the various ways in which the current framework allows the Government to avoid or limit scrutiny, including by choosing the form of an agreement and deciding whether to extend the time for scrutiny.

We therefore concluded that there is an accountability gap and that reform of the current scrutiny framework is needed. To address problems in the short term, we proposed a set of practical and operational measures to make the current framework under the CRaG Act more effective. I welcome the Government’s willingness to accept many of these recommendations, and I urge the Minister to make it a priority to put them into practice.

However, such operational changes cannot fix the fundamental defects that I have described and the imbalance of power between Parliament and the Executive. I believe that there is a powerful case for legislative reform to address this and I call on the Government and my noble friend to engage with the IAC and with Parliament more widely to bring treaty scrutiny into the 21st century.

At the conclusion of the recent debate on the India agreement, I tried to capture this problem by urging that the scrutiny of treaties should not be a second-class citizen when it comes to parliamentary scrutiny. The point I was trying to make was better and more eloquently made by the great Walter Bagehot, who argued in The English Constitution that, because treaties can have as much impact as domestic laws, it is illogical to require the elaborate assent of representative assemblies to every word of the law while not consulting them even on the essence of the treaty.

While CRaG has made some inroads on the deficiency, our report and the evidence we received shows that it is a miserly and inadequate response to this accountability gap. I hope, therefore, in this final act as outgoing chair—as I finally pass the baton to the noble Lord, Lord Johnson of Lainston, who I am glad is in his place—I can persuade your Lordships to encourage my noble friend the Minister and her colleagues to take a courageous and bold approach to reducing the accountability gap. I beg to move.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, I have a few things to say, though I recognise that there is another debate to follow. I thank all noble Lords who have contributed. This has been another debate where a lot of thoughtful things have been said, most of which I agreed with. I actually agreed with the noble Lord, Lord Lilley, that there is merit in the negotiating mandate being the subject of debate, and that has happened. I am afraid that the noble Lord, Lord Callanan, was not right that two things were missing from the report; it touches on the negotiating mandate in paragraph 55(a) and sets out the Ponsonby rule fully in paragraph 30.

I again thank all the members of the committee who participated in making the report, but I particularly thank the officials. I have made this point before, but they do an extraordinary amount of work in a very short time. If I may, though it is invidious, I will slightly embarrass her by particularly thanking and singling out Cathy Adams, who is leaving the committee and your Lordships’ service as international legal adviser. She has been an extraordinarily valuable member of staff and I thank her personally as well as on behalf of the committee.

I listened very carefully to what my noble friend said. I listened more carefully to what she said than to what she read out, if she does not mind my saying so, as there were hints of what my noble friend Lord Anderson of Swansea said, as she recognised, in her responses. I know that work is going on; I have heard that and we are thankful for it, but there is more to do. I suggest that she rereads this debate in those long hours when she has nothing else to do. I recognise that that is a tall order, but it is important, as everyone in this debate has recognised, as treaties affect the lives of people every day, to spend time on them in the way that we spend time elaborately looking at primary legislation. We do not do this for treaties, but we should. I am sure she will keep that in mind and direct her colleagues’ attention to it.

I ask her also to understand what goes into the process of writing one of these reports. I was a bit surprised, talking to officials on a previous occasion, that they did not really understand why we needed to get the evidence that we do. I know the noble Baroness, Lady Lawlor, thinks we should not, but I would take issue with that. It is important to have an evidence basis for the work done by the committee. That takes time to bring together, and it is one of the reasons why the noble Lord, Lord Hannay, was quite right to underline the need for additional time.

[Baroness Lawlor (Con)]

I did not say we should not take evidence, but simply that we should have a greater diversity of expert witnesses.

[Lord Goldsmith (Lab)]

I thank the noble Baroness. I think we have much more diversity than she is giving us credit for, but she has perhaps not been a member of the committee for quite as long as I have.

I am also grateful to my noble friend the Minister for recognising that the defence of, “Do not worry, there is implementing legislation”, is not an answer to the concerns raised by the committee. With those comments, and the kindly meant suggestion that the Minister comes back to this debate, I beg to move.

Motion agreed.