26 November 2021
Chloe Anthony is an ESRC-funded doctoral researcher in environmental law at the University of Sussex Law School. Minako Morita-Jaeger is a Policy Research Fellow of the UK Trade Policy Observatory and a Senior Research Fellow of the University of Sussex Business School. L. Alan Winters is Professor of Economics and Founding Director of UKTPO.
Trade deals primarily aim to facilitate trade between countries by lowering barriers to trade in both goods and services. Many of these barriers are increasingly concerned with different regulations across countries and also with so-called ‘non-trade policy areas’ such as labour or environmental standards. The UK’s most recent FTAs – for example, the UK-EU Trade and Cooperation Agreement, the UK-Japan Comprehensive Economic Partnership – aim for cooperation beyond trade.
The domestic impacts of trade deals – economic, social and environmental – can be significant, so it is important that UK trade deals are scrutinised domestically before they are signed. For example, trade agreements with larger partners, such as the EU or the US, may have significant domestic impacts. Even if aggregate impacts of a trade deal with one country are small, there still may be significant implications for certain sectors or groups within society. Also, the UK may sign an agreement with one country covering regulatory issues that may overlap or even conflict with a prospective agreement with another country – this requires debate and scrutiny.
The UK’s new FTAs have been made with very little parliamentary scrutiny. What should happen, and importantly what should we know about them, before they are signed? Parliament’s role in scrutinising trade agreements is well-recognised to be minimal. The reports of four recent Select Committee inquiries (European Union Committee 2020; European Union Committee 2019; Constitution Committee 2019; International Trade Committee 2018) have called for greater transparency in treaty making and expanded roles for Parliament and the devolved administrations. The UKTPO’s response to the Public Administration and Constitutional Affairs Committee inquiry supports these conclusions – this blog sets out our recommendations on information requirements for proper scrutiny of trade agreements.
The UK Government has embarked upon an unprecedented programme of trade agreement negotiation, but without an overarching trade strategy. The UK Government should produce a detailed international trade strategy, in cooperation with the devolved governments, for public consultation and debate in the UK Parliament and the devolved legislatures. This should be reviewed periodically.
For each new trade agreement, there should be public consultation and parliamentary debate in the UK Parliament and the devolved legislatures on the draft and final negotiating mandates. The draft mandate should be detailed and concrete, including meaningful information on the likely effects of the proposed agreement.
During trade negotiations, parliamentary committees, Parliament and the devolved legislatures should receive detailed and meaningful reports on progress. There should be access to draft treaty texts and detailed explanatory memoranda; subject to suitable protections, confidential information on negotiations should be provided where necessary. There should be established routes to communicate views to Government on the negotiations.
Under current procedures, the UK Parliament is allowed a vote on finalised treaty texts after signature and before ratification, but neither House is guaranteed a vote or a debate on the treaty and Parliament cannot amend treaties. The most that can be done is for the House of Commons to delay ratification. The politics of shelving signed treaties and the resulting loss of reputation as a serious negotiating partner, makes the exercise of Parliament’s powers at this stage more or less unthinkable. As a result, much commentary argues this process is not fit for purpose and not commensurate with the domestic effect of treaties. If there was provision for proper information transfer, consultation and parliamentary debate before signature, as we have suggested, treaties would come forward with a good measure of support and ratification would become more or less a formality, except where circumstances had suddenly changed.
Currently, Parliament’s main role in treaty making is scrutiny of implementing legislation. This is crucial and should proceed in the normal way, but requirements for monitoring and evaluation should be introduced.
There is a pressing need to review the UK’s constitutional relationships and legislation on treaty making. The UK Parliament has no legal rights to be informed of the negotiating mandate, nor to see the negotiating texts, and approval is not required for ratification. The UK Government has begun publishing negotiating aims and made commitments to engage with the UK Parliament and the devolved nations. This is welcome, but we recommend information provision on trade agreements should be set out in a White Paper, and ultimately in legislation, for all stages of the treaty making process. This would better reflect the impactful nature of trade agreements and support a representative, inclusive and legitimate process.
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I agree with this blog. It’s interesting to compare the UK system with the (allegedly) less democratic EU procedure for negotiating and concluding trade agreements. In the EU the mandate for a trade negotiation is given to the Commission by the Council (one half of the EU legislature) and the progress of the negotiations is monitored by a committee of officials from the member states who “assist” (in the French sense of being present) in the formal negotiations. If the negotiation is successful the Commission and the negotiator for the other side”initial” the text. The Council then decides whether to authorise the Commission to sign the agreement but it can only be finally “concluded” when the EU Parliament has given its consent, although, in cases of urgency, the trade part can be applied provisionally in the meantime. (The Commission has undertakn to the Parliament not to use this possibility but it was used for a few monthsin the case of the EU/UK trade and cooperation agreement, presumably inorder to avoid tariffs being imposed when the UK’s trade links with the EU expired following Brexit. ) Because the consent of Parliament is needed, the Commission keeps the Parliament informed throughout the negotiating process. In short, this is pretty close to the model you recommend for the UK. Of course, the consitutional background is different both because the UK Government is formed from members of the legislature so there isn’t a full separation between the legislature and the executive and because, in its Treaty making role, the Government exercises the historical power of the sovreign. But that historial background hardly excuses the Government from exercising that power in an undemcratic way today.
The US, where, like the EU, there is a clear distinction between the Government and the executive, the ultimate power to ratify a Treaty lies in the Congress. The same is true of the Latin American countries.
Another excellent UKTPO blog. It could have been even better, though, if it had also discussed the reasons why its sensible proposals are so strongly resisted by government, which are presumably that it is easier to negotiate, and especially to explore solutions to conflicts of interest, in private than in public. The authors could then have set out the counter-arguments, including from experience in other countries (as suggested by David Roberts above). I think that would have increased the impact of the blog on the unconverted.