Treaty Scrutiny in Westminster (International Agreements Committee Report)

Lord Kerr of Kinlochard Excerpts

Monday 16th March 2026 Grand Committee

[Lord Kerr of Kinlochard (CB)]

My Lords, I need to respond to the rather surprising compliment from the noble Lord, Lord Lilley. I can do so because I agree with a number of things that he said, in particular on the case for parliamentary scrutiny during negotiation and before a deal is struck. I am sure that we all agreed with his strictures on the negotiating stance of his noble friend Lord Frost. I join in the tribute to the committee and its outgoing chairman, the noble and learned Lord, Lord Goldsmith, under whom I served, and let us not forget the noble Baroness, Lady Hayter, who stood in so well for him when he had to step aside. I also pay tribute to the noble Lord, Lord Grimstone, who was by far the most sympathetic Minister with whom we did business, and to the incoming chairman, who maintained the Grimstone tradition.

There is an accountability gap; the report proves it very satisfactorily and clearly by comparing our procedures with those of comparable countries, including those with dualist systems. They have more say than we do. However, there is also a gap relative to the past. We have much less say now than we did when we were in the EU. With our Ministers taking part in Council decisions on opening, handling and concluding negotiations, Parliament’s scrutiny reserve meant that Ministers could be and were summoned to answer our questions before casting their votes. I served on our EU committee and four of its sub-committees, and I can confirm that their scrutiny, unlike today’s, was real. Moreover, once the Lisbon treaty came into force in 2009, our Members of the European Parliament enjoyed the right to be kept immediately and fully informed at all stages of every treaty negotiation led by the Commission—on trade, investment, agriculture, fisheries; any subject where full EU competence applied. Of course, they also had the right to vote on the outcome—

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[Lord Kerr of Kinlochard (CB)]

I was making the point that the European Parliament has the right to vote on the outcome of any treaty negotiation, of course: treaties require its positive consent. Its debates informed ours. My point is not just that there is an accountability gap relative to the European Parliament, but that our Government are now much less accountable to our Parliament than they were 16 years ago when CRaG was debated and agreed. So it really will not do for the Government to assert, as their reply to the committee does, that

“the CRaG Act strikes a careful balance between the power of the Executive to conclude and ratify treaties and the power of Parliament to scrutinise treaties subject to ratification”.

If CRaG got the balance right, by definition, the balance is wrong today. Or did careful Prime Minister Johnson correct, by Brexit, a mistake made by the careless Prime Minister Brown? I do not think so.

Two years ago, the Opposition Front Bench spokesman on trade in the other place stated that

“the CRaG process … is clearly not fit for purpose”.—[Official Report, Commons, 19/3/24; col. 869.]

I agree. So let us not have any more of this “careful balance” nonsense now. I am not naive enough to expect that legislative time will be made available for major CRaG reform. I recognise that the Government’s response to the committee is not all nonsense; nor is it all just, “What we have, we hold”. The Government are prepared to discuss possible improvements in the way CRaG works. My plea to them is: be constructive about that process. Put a parliamentarian in charge of the process: that is, someone who has been a poacher. Do not leave it to the grim official gatekeeper/gamekeepers like me.

The status quo is acutely unsatisfactory and unbalanced, and five years of unbalance is long enough. As I said in our debate last week, our treaty negotiators will be more powerful if the ratification of the outcome of a negotiation is no longer known to be a foregone conclusion of farcical formality.