Treaties and other international agreements have a major effect on citizens’ day-to-day lives. But the mechanisms for parliamentary involvement in scrutinising and agreeing them are widely considered inadequate. Lisa James and Arabella Lang explain how these mechanisms work, and how they might be reformed.

Background

International treaties and other agreements are vital policy tools in a world where many problems and solutions cross borders. But the UK parliament has limited involvement in them, which is increasingly considered inadequate. Parliamentary committees such as the Commons Public Administration and Constitutional Affairs Committee, the Lords International Agreements Committee, and the former Commons International Trade Committee – as well as external experts – have consistently called for a greater role for parliament in both making and approving international agreements.

What are international agreements?

International agreements vary hugely in their scale and scope. They include large trade agreements between several states, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which the UK is in the process of joining; security, data or visa agreements between two governments; international human rights and refugee conventions; and agreements governing international organisations such as the EU or UN. At one extreme, it can take years to set a negotiating mandate, conduct negotiations, agree and sign a text, implement and ratify the agreement, and bring it into force. Or, at its simplest, an agreement might consist of an exchange of letters between two states.

International agreements also vary in their effects. Some are legally binding treaties, with consequences under international law for any breaches. Others are not legally binding but still have political force, and may entail spending commitments or have other significant impacts. The UK–Rwanda agreement on offshoring asylum seekers, for example, was initially a non-binding Memorandum of Understanding, before the two governments negotiated a binding treaty.

During the UK’s EU membership, many of the international agreements affecting the country were negotiated and scrutinised at EU level. Following Brexit, the UK is now conducting more of its own international negotiations. This has brought increasing attention to how those negotiations and the resulting agreements are – or should be – scrutinised and approved domestically.

Why does parliamentary involvement in international agreements matter?

International agreements once largely concerned tariffs and war. But as the world’s challenges and opportunities have become increasingly interconnected, these agreements have become far more wide-reaching and now have a major impact on daily life. For example, trade agreements may affect food standards, healthcare provision or environmental protections; non-trade agreements can have significant privacy or human rights implications.

Advocates for greater parliamentary involvement in international agreements point to the democratic deficit inherent in making these types of policy decisions without legitimation by parliament. As with broader arguments about the importance of scrutiny for high-quality decision-making, critics also point out that scrutiny provides transparency, and may help governments to sharpen and improve their policies. Some international agreements also long outlive a single government, even in their negotiation phase alone, so cross-party consensus may be beneficial.

Governments, by contrast, tend to argue that negotiations require flexibility, and that government control allows negotiators to respond to changing circumstances without having their hands tied by parliament.

In both the United States and the European Union, the legislature is consulted before and during negotiations. Negotiators have noted that needing to pass an agreement through the legislature can, in fact, strengthen their hand in negotiations. And the vast majority of countries now give their parliaments a role in approving at least some finalised international agreements.

How is the UK parliament involved in international agreements?

International agreements are currently negotiated and signed under the royal prerogative – powers formally held by the monarch but delegated to ministers.

Parliamentary involvement with international agreements takes three main forms: the limited provisions of the Constitutional Reform and Governance Act 2010 (CRAG); considering any implementing legislation required; and scrutiny by select committees. Nonetheless, experts and parliamentary committees have highlighted key gaps in parliament’s role.

CRAG

The key requirements for parliamentary involvement with international agreements are set out in CRAG, which formalised parts of a government commitment dating back to the 1920s.

CRAG requires the government to lay many, but not all, signed treaties before both the House of Commons and House of Lords. along with an explanatory memorandum. This triggers a period of 21 sitting days before the Government can ratify a treaty, when a vote in either House against ratifying the treaty has certain effects.

If the Commons passes a resolution objecting to ratification during that period, but the government still wants to ratify the treaty, ministers must make a statement explaining their position. This starts another 21-sitting-day period, allowing for potential further objections. This power has never been used, for reasons explored below.

The Lords can also object to ratification during the 21-sitting-day period, as happened for the first time in January 2024, when peers voted against ratifying the Rwanda treaty until certain safeguards were proven to be in place. However, the Lords does not have the same delaying power as the Commons – instead, the government simply has to lay a statement setting out its position and can then ratify regardless.

CRAG has recently been supplemented by some non-binding government commitments on free trade agreements, for example on making time for debates on negotiating objectives or signed agreements. However, the informality of these commitments leaves their status in doubt.

CRAG has widely been called unfit for purpose, both because its scope is relatively narrow, and because the powers it contains are relatively weak. Notably, CRAG applies only to treaties which require ratification. This means that some types of treaties – alongside non-treaty, legally binding international agreements, such as Memorandums of Understanding – are not covered. CRAG also applies only once the treaty text has been agreed and signed, so gives parliament no role in shaping treaties.

Crucially, CRAG does not require parliament to approve treaties. Even the Commons’ limited power to delay appears to be illusory, as in practice it requires the government to provide parliamentary time for a debate and vote. This was illustrated recently when the government refused to allocate time in the Commons to the Rwanda treaty, despite a recommendation to do so from the chamber’s Home Affairs Committee.

Implementing legislation

The second key element of parliamentary involvement applies where implementing legislation is needed to bring the UK statute book into line with the country’s new international obligations.

Not all international agreements require implementing legislation, and some may need legislation only for certain aspects. Occasionally this will need to be primary legislation, but much more often only secondary legislation is required. This means that in practice the use of implementing legislation, and the scrutiny it receives, is variable.

Debates on implementing legislation are also not a substitute for debate on an agreement itself. Implementing legislation concerns only the UK’s obligations under a treaty – and not, for example, the benefits it is expected to deliver, or the obligations being undertaken by the other treaty partner. 

Select committee scrutiny

Since 2020, the House of Lords has had a dedicated scrutiny committee: the International Agreements Committee. The committee scrutinises examines international agreements, highlighting any that it feels deserve particular attention, and either requesting further information from the government, or requesting time for a plenary debate.

The system in the House of Commons is more fragmented, and the chamber lacks a dedicated treaty scrutiny committee, as well as the resources that would accompany it. From 2016 to 2023, the Commons International Trade Committee scrutinised trade agreements as part of its broader work of overseeing the Department for International Trade; but the committee was abolished following a reorganisation of government departments. The new Business and Trade Committee has confirmed that the breadth of its remit will leave limited time to scrutinise international trade agreements. Some other committees may consider aspects of international agreements that fall within their areas of focus, in an ad hoc manner, but in practice this rarely happens.

One key feature of the existing arrangements for parliamentary scrutiny of international agreements is that they are heavily weighted toward the end of the treaty-making process. There are few

mechanisms for parliament to influence either the negotiating mandate, or the negotiations themselves: the International Agreements Committee or Business and Trade Committee may seek a plenary debate on a negotiating mandate, but the government has no obligation to comply.

This means that most parliamentary scrutiny takes place after an agreement has been concluded. At this point, it is very difficult for agreements to be changed, unlike domestic legislation where parliamentarians can propose and vote on amendments.

How could scrutiny of international agreements be strengthened?

A wide range of proposals have been made for reforming the scrutiny of international agreements, with significant recent reports by the Commons Public Administration and Constitutional Affairs Committee (PACAC) and Lords International Agreements Committee, as well as two reports by the Centre for Inclusive Trade Policy. Their proposals differ, but all seek to strengthen parliament’s role, ensuring that it has the information, time and resources needed to effectively scrutinise negotiations and the resulting agreements. Specific proposals include:

• Substantially reforming CRAG, which both PACAC and the IAC consider unfit for purpose. In particular, PACAC suggests that the Commons should need to actively approve legally binding treaties. Significant non-treaty agreements should also receive more thorough scrutiny.
• Providing greater select committee resources for treaty scrutiny, particularly in the Commons. PACAC recommends that the Commons establish a dedicated treaty scrutiny committee, to sift international agreements and help draw the House’s attention to particularly significant or controversial ones. It also suggests that all Commons select committees should be mandated to consider treaties affecting their policy areas.
• Giving parliament a more significant role in scrutinising negotiating mandates and the progress of negotiations; this is recommended by both PACAC and the IAC.

The success of such proposals will depend on government willingness to accept greater scrutiny, in return for the democratic legitimacy and improvement in decision-making that this can provide. But it will also depend on parliamentarians’ willingness to use the mechanisms available to them – to scrutinise and shape international agreements that can have a major effect on the UK’s prosperity, security and international reputation.

This blog is part of a briefing series designed to inform policy-makers and the public about key constitutional issues and democratic debates. Our briefings draw on international evidence and examine both long-term trends and current developments in the UK. This is part of our project on constitutional principles and the health of democracy.

About the authors

Lisa James is a Research Fellow at the Constitution Unit.

Arabella Lang is Head of Public Law at the Law Society.

Featured image: Boris Johnson Brexit Trade Deal Signing (CC BY-NC-ND 2.0) by UK Prime Minister.