High Court Judicial Review & the CRaG Act: Closing Westminster’s Accountability Gap

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The bottom line is stark: Parliament’s treaty-scrutiny machinery is underpowered, and the courts will increasingly be asked to pick up the slack. The House of Lords International Agreements Committee (IAC) has now said the quiet part out loud—Part 2 of the Constitutional Reform and Governance Act 2010 (CRaG) is a “weak and insufficient” framework.

The Committee urges earlier text access, meaningful extensions to the 21-day window, codified commitments, and transparency for non-binding instruments.

As a public-law practitioner with a traditional outlook and zero appetite for window-dressing, I see three truths. First, treaty-making today drives domestic policy (trade, migration, environment, data). Second, CRaG’s stopwatch enables executive choreography at Parliament’s expense. Third, litigants will press the Administrative Court/Divisional Court to enforce process discipline when Whitehall overreaches.

Why this matters for domestic law—and the courts

The UK is dualist; treaties don’t self-execute. Yet the UK assumes international obligations that shape legislative discretion, regulatory choices, and administrative action. Scrutiny of implementing legislation is no substitute for scrutiny of the treaty bargain itself—by the time a Bill or SI appears, policy choices are locked in. The IAC’s analysis lands this point squarely.

This is exactly where judicial review earns its keep: not to second-guess policy, but to police legal limits on prerogative power, ensure candour to Parliament, and enforce legitimate expectations created by ministerial practice.

The CRaG architecture—where the pressure points lie

• The 21-day period (s.20 CRaG): workable for routine texts; manifestly cramped for significant agreements. The Committee documents repeated refusals to extend, even without ratification urgency. That is fertile ground for challenge where refusal is arbitrary, irrational, or ignores relevant considerations.

• Extensions (s.21): the Government talks “reasonableness” but rarely publishes the factors it applies. Failure to self-bind with intelligible criteria invites unlawfulness for opacity and inconsistency.

• Exclusion of scrutiny (s.22): exceptional by design. Using it for politically sensitive agreements post-ratification should be tightly justified and amenable to ex post review.

• Implementing legislation ≠ scrutiny: line-by-line debate on a narrow statutory hook cannot retrofit democratic oversight of the international bargain. The Committee endorses a simple proposition: treaty scrutiny should precede, not follow, implementation.
  

Grounds of challenge the High Court will recognise

The Administrative Court is not a policy forum; it is a legality forum. That said, UK public law has ample tools to discipline a wayward CRaG process:

1. Illegality (error of law/misdirection): misconstruing the scope of s.21–s.22 powers; treating “policy convenience” as a trump where Parliament anticipated scrutiny.

2. Irrationality/unreasonableness: rejecting a targeted extension where (i) the treaty is plainly significant; (ii) no ratification urgency exists; (iii) evidence shows Parliament cannot assemble a meaningful record within 21 days. The IAC’s case studies support the contention.

3. Relevant/irrelevant considerations: failing to weigh public-interest factors the Committee has articulated—complexity, human-rights/environmental impact, devolution effects.

4. Legitimate expectation (procedural): the Government’s settled practice for FTAs—early objectives, private briefings, pre-CRaG text—creates process baselines. A sharp, unexplained departure from equally significant treaties may breach fairness.

5. Duty of candour to Parliament and the Court: incomplete or euphemistic Explanatory Memoranda (EMs) frustrate scrutiny. The Committee recommends EMs upgraded to the Australian-style National Interest Analysis; failing to do so, while claiming adequate transparency, risks public-law censure.
   

Remedies and litigation strategy

• Interim relief: where ratification is imminent and will cause practical irreversibility, interim orders can hold the ring (the court will weigh foreign-relations sensitivities against irreversible legal effects).

• Declarations & quashing orders: a declaration of unlawfulness (e.g., on a s.21 refusal) coupled with a short mandatory timetable for reconsideration often achieves more than pyrrhic ratification-after-the-fact.

• Expedition: the CRaG clock is unforgiving; issue a pre-action letter early, press for a truncated timetable, propose focused grounds, and put the draft order before the court at permission.
  

Devolution and stakeholders

The Committee is explicit: devolved legislatures have a legitimate stake in treaty impacts. That is not mere courtesy—failure to address devolution-sensitive consequences in EMs may be an error of approach, especially where devolved implementation will be required. NGOs, trade bodies, and rights groups should document concrete domestic effects to anchor their standing and relief case.

A forward-looking operating model (no fluff, just brass tacks)

For Government (do it now, not next Parliament):

• Publish criteria for s.21 extensions; grant a single reasoned extension on request for significant treaties (up to 21 days), proposing a shorter period if operationally necessary—and explain why.

• Share signed texts in advance with the IAC and relevant policy committees, under confidentiality if needed.

• Upgrade EMs to NIA-level substance—state the policy case for ratification, alternatives considered, domestic impact, dispute-settlement implications, and devolution analysis.

• Codify all scrutiny commitments in a single policy document within 12 months.

• Create a central, public registry of significant non-binding instruments.
  

For potential claimants (your playbook):

• Record the expectation: capture ministerial letters, departmental guidance, and the FTA practice.

• Evidence of domestic impact: affidavits from sector experts; line-of-sight from treaty chapter to regulated outcome.

• Targeted grounds: pick two or three surgical points (extension refusal criteria; failure to supply information promised; perfunctory EM).

• Timing: move before ratification triggers irreversible external obligations; if already ratified without scrutiny, aim for a declaratory judgment to deter repetition and drive codification.
  

Final Thoughts:

Can the High Court stop ratification?

It can restrain an unlawful use of CRaG powers or require reconsideration in accordance with law. Relief is tailored; foreign-relations sensitivities are weighed, but the rule of law is not optional.

Is parliamentary debate enough to defeat a claim?

No. Debate does not cure a failure to allow evidence-based scrutiny or to honour settled procedural commitments to Parliament.

What about “non-binding” MoUs?

Politically weighty MoUs increasingly shape rights and obligations in practice. The Committee calls for a public registry and parliamentary transmission. Expect litigation if opacity persists.

Call to action: If you need a rapid, surgical assessment of a treaty-making decision—extension refusals, truncated scrutiny, or problematic EMs—request a 48-hour litigation risk memo and draft pre-action correspondence pack.

Alt text suggestion for header image: “Royal Courts of Justice façade at dusk—symbolising High Court oversight of treaty-making.”High Court judicial review; CRaG Act; treaty scrutiny; Royal prerogative; Administrative Court; parliamentary accountability; section 21 extension; section 22 exclusion; Explanatory Memorandum; legitimate expectation.