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Guest blog by Emily Jones, Associate Professor in Public Policy and Director of the Global Economic Governance Programme and Anna Sands, Research Officer of the Global Economic Governance Programme both at the Blavatnik School of Government, University of Oxford.

30 September 2020

In the next few weeks Parliament will decide how much scrutiny it has over the UK’s future trade deals. The Trade Bill is currently in the House of Lords, and a series of amendments have been tabled that aim to strengthen Parliament’s role.

As things stand, Parliament’s role will be minimal. The negotiation and ratification of international trade agreements falls under the Royal Prerogative – the making of international treaties is one of the few actions that Ministers can take without the approval of Parliament. Parliament’s main role is to scrutinise any implementing legislation. But this scrutiny occurs too late in the process to influence the text of trade agreements, and is confined to those aspects where changes to primary legislation are needed. Food standards – a controversial issue in the UK – are a good example. If the Government agrees in a trade agreement to change food standards, Parliament is unlikely to have a say, as Ministers are empowered to make direct changes to relevant legislation (see Emily Lydgate’s paper).

For anyone familiar with the powers of the US Congress and European Parliament in trade negotiations, those of the UK Parliament are strikingly weak. Unless changes are made, the UK’s future trade deals will receive less scrutiny than the trade deals the UK entered as a member of the EU.

There are compelling arguments for strengthening parliamentary scrutiny. The lack of scrutiny was already seen as an issue in the late 19th century; Walter Bagehot famously stated that  ‘Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous’.

The scope of trade agreements has grown dramatically since Bagehot’s day, rendering the discrepancy between the scrutiny given to treaties and domestic legislation even more glaring. Contemporary trade deals seek to align regulation between countries and affect many areas – from farming and food standards, to manufacturing, financial services and accounting, to the regulation of the digital economy, and healthcare. Effective scrutiny would provide impetus for high quality decision-making. It would also provide leverage in negotiations; just as US trade negotiators frequently invoke Congress as the reason they cannot accept certain terms, UK negotiators could reference constraints imposed by Parliament.

In a new paper we systematically compare parliamentary scrutiny in the UK, United States, European Union, Australia, and Canada. We explain in detail the extensive scrutiny powers of the US Congress and European Parliament, and contrast these with the much weaker powers of the Westminster-style parliaments of the UK, Australia and Canada. We weigh up the arguments for and against greater scrutiny, and identify a series of practical steps the UK could take to strengthen parliamentary scrutiny. Here we share our headline findings (see Table 1 for a summary).

How much do parliaments influence negotiating objectives?

 The US Congress and EU Parliament both get involved before negotiations begin, and shape the negotiating mandate. The US Congress stipulates in domestic legislation (the Trade Promotion Authority) negotiating objectives that the Government must follow, and it has to be informed and consulted before each negotiation the Government wants to embark on. The European Parliament doesn’t have the formal right to shape the negotiating mandate, but it does have the right to be informed. As the European Parliament ultimately has to approve trade agreements, the European Commission has an incentive to solicit Parliament’s views, and it has become routine to consult Parliament on negotiating directives.

In contrast, in the UK, Australia, and Canada, the government has no legal obligation to share negotiating mandates or consult with parliament. The UK has started to publish summaries of its negotiating objectives and hold short debates on them, but is yet to establish a mechanism for consulting Parliament on them.

What information do parliaments have during negotiations?

When negotiations are underway, members of the US Congress and European Parliament have far more access to information than their counterparts in the UK, Australia and Canada. The US Congress and European Parliament have the legal right to be informed at all stages of negotiations, and their members have access to negotiating documents, including classified negotiating texts. In the UK, Australia, and Canada, parliaments have no formal right to information during the negotiations and there is no established practice of sharing negotiating documents, even on a confidential basis.

A pressing question for the UK is how to involve the devolved administrations of Scotland, Wales and Northern Ireland in trade negotiations. Although treaty-making is a reserved competence, devolved administrations are responsible for implementing treaty obligations in areas of devolved competence, such as agriculture. Here there are valuable lessons to be learned from Canada, where the Government has found ways to involve Provincial administrations in areas where they have competence, whilst retaining control over the treaty-making process.

Do parliaments vote on the final outcome?

The US Congress and European Parliament are veto players in trade negotiations, as they have to approve the final agreement for it to be ratified.

In the UK, Australia and Canada, parliaments do not formally approve trade agreements. Governments in Canada and Australia have a policy (but are under no legal obligation) to table treaties for scrutiny by parliamentary committees, but neither parliament has the power to prevent ratification. In the UK, the Government is required to lay treaties before Parliament. While it cannot prevent ratification, the UK Parliament does have the power to delay ratification by 21 days. In theory it can do this repeatedly, but the process is challenging to invoke and has never been used. These parliaments play an important role in scrutinising implementing legislation, but this is not an effective substitute as it comes too late in the day to influence the text of agreements, and applies only to those aspects of trade agreements requiring changes to primary legislation.

Strengthening UK scrutiny – steps the UK can take

Given the substantial policy implications of many trade agreements, it is no surprise that there is disquiet in the UK, Australia, and Canada, with parliamentary committees all calling for reforms.

As parliamentarians consider how to amend the Trade Bill, there are several lessons they can draw.

Ultimately, for meaningful scrutiny to occur, the Government needs an incentive to properly inform and consult Parliament, including on the negotiating objectives. Our comparative analysis suggests this is unlikely to occur unless Parliament has veto power and has to approve the agreement before it is ratified. We strongly recommend providing Parliament with such a vote.

Parliament also needs guaranteed access to information throughout the negotiations. Following practice in the US and EU, the UK Parliament could be given a statutory right to timely and substantive information, including access to draft negotiating texts and related documents for all MPs and security-cleared staff, on a confidential basis.

Given the complexity of trade agreements, more analysis is needed than is currently provided to Parliament, and the UK Government has started to publish preliminary impact assessments at the outset of negotiations. A statutory obligation could be created requiring government to publish preliminary impact assessments at the outset of negotiations and full impact assessments when the treaty is laid in Parliament, evaluating economic, social, and environmental impacts.

For its part, Parliament has created a dedicated treaty scrutiny committee in the House of Lords but has yet to do so in House of Commons. Such a committee would play the important role of sifting treaties and treaty actions to identify those which are important, and would lead on inquiries and reporting.

Finally, Parliament needs adequate time to scrutinise the final text of agreements, and the current 21-sitting days is unlikely to suffice. Here the UK could learn from the US, where Congress has access to the agreed text 60 days before signature, and access to the final text for 30 days before it is laid before Congress for approval.

Trade agreements have changed out of all recognition since the 1970s when the UK last had competency in trade. Given the extensive public policy implications of many trade agreements, it’s time to strengthen Parliament’s role.

Table 1: Parliamentary scrutiny of trade agreements in the US, EU, UK, Australia, and Canada

  Negotiating Mandate Negotiating Process Ratification and Implementation
US Congress defines negotiating objectives for all trade agreements in legislation (TPA)

Ahead of starting new negotiations, government must notify and consult Congress

Legal right to be informed

Legal right to access documents including classified negotiating texts

Government must notify Congress and publish treaty before signature

Parliamentary approval is required for ratification

EU Legal right to be informed of negotiating mandate

Informal practice of consulting Parliament on draft mandate; Parliament issues motions to communicate its preferences

Legal right to be informed

Informal practice of sharing classified negotiating texts with all MEPs via secure reading room

Parliamentary approval is required for ratification
UK No legal right to be informed of negotiating mandate

In practice the Government has begun to give statements with short debates on negotiating objectives

No legal right to be informed

In practice, Government has started to publish some preliminary negotiating proposals, but on an ad hoc basis

Treaties must be tabled before Parliament before ratification

Parliamentary approval is not required for ratification, although Commons can delay it

Parliament’s main role to scrutinise any implementing legislation

Australia No legal right to be informed of negotiating mandate No legal right to be informed

Informal commitment by government to biannual briefing to relevant committees

Government has the policy, but no formal obligation, to table a signed treaty before Parliament prior to ratification

Parliamentary approval is not required for ratification

Parliament’s main role to scrutinise any implementing legislation

Canada No legal right to be informed of negotiating mandate Committees responsible for trade can be briefed, but no legal right Government has the policy, but no formal obligation, to table a signed treaty before Parliament prior to ratification

Parliamentary approval is not required for ratification

Parliament’s main role is to scrutinise any implementing legislation

Disclaimer:
The opinions expressed in this blog are those of the author alone and do not necessarily represent the opinions of the University of Sussex or UK Trade Policy Observatory.

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