Business and Trade Committee
Oral evidence: UK accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, HC 483
Tuesday 23 January 2024
Ordered by the House of Commons to be published on 23 January 2024.
Members present: Liam Byrne (Chair); Jonathan Gullis; Antony Higginbotham; Ian Lavery; Anthony Mangnall; Julie Marson; Mark Pawsey.
Environment, Food and Rural Affairs Committee member also present: Sir Robert Goodwill.
Questions 1 – 16
Witnesses
I: Professor Lorand Bartels MBE, Chair, Trade and Agriculture Commission.
Witness: Professor Lorand Bartels.
Q1 Chair: Welcome to this morning’s session of the Business and Trade Committee, where we are scrutinising the Government’s strategy for presenting and agreeing CPTPP. We are delighted to kick off this first panel with Professor Lorand Bartels. Professor Lorand, I wonder whether you could say a word of introduction for the record and then we will open the questioning.
Professor Bartels: My name is Lorand Bartels. I am professor of international law at the University of Cambridge. Relevantly, I am chair of the UK’s Trade and Agriculture Commission.
Q2 Anthony Mangnall: I wonder whether you might be able to start off with some lessons that you learnt when you were doing the UK-Australia free trade agreement and the TAC’s report on that.
Professor Bartels: We learnt many lessons. First, we needed to establish our methodology. That was a very good guide for our subsequent advice on the New Zealand agreement and then CPTPP. These are the three that we have done.
Should I say a little bit about what it is that we do, just for the benefit of those who do not know us so well? The Trade and Agriculture Commission has been established on a statutory basis in order to give advice to the Secretary of State for Business and Trade and to the UK Parliament independently on new free trade agreements that the UK has signed. We have a very particular mandate, as you can imagine, from the word “agriculture” in the title. We are focused only on what these new free trade agreements mean for agriculture. We are also focused on agricultural imports into the UK. We do not look at all agricultural exports from the UK to other countries under FTAs.
In overall terms, we are mandated to look at whether, by signing a free trade agreement, which will of course result in increased imports into the UK—and to the extent that these increased imports include agricultural products—the free trade agreement that we are looking at from time to time, so CPTPP in this case, will be likely to undermine the UK’s ability to maintain its statutory protections. That is in three particular areas. That is environmental protections, protections for animal welfare and protections for, specifically, animal or plant life or health, so that is quarantine-type issues. This is what we look at in overall terms.
One way of understanding it—and this is the origin of the TAC, the Trade and Agriculture Commission—is that some people in the UK, particularly in the agricultural sector, are or were concerned that, by signing new free trade agreements, they would be put under competitive pressure from agricultural products coming in because of tariff reductions on those agricultural products. We are, let us say, a second line of defence. The idea is that, if these products come in, at least we should be certain that they are not coming in in a way that would undermine UK standards. They are not made in a way that would not conform to UK standards.
Q3 Anthony Mangnall: I am going to come on to the actual process, the remit you have and how happy you are in terms of Government response in a second, but I am conscious of time. You produced your TAC report in December on CPTPP. Do you want to highlight the top lines for the Committee?
Professor Bartels: It is essentially, on the whole, good news. We have three questions that we were asked. One was whether CPTPP requires the UK to change its levels of statutory protection in these three areas that I mentioned: animal or plant health, animal welfare and environmental protection. That is a legal question, essentially, and our answer to that was no. The reason is that CPTPP does not change the legal position that the UK is already subject to under WTO law. In fact, in some areas CPTPP actually enhances the UK’s position when it comes to the statutory protections.
The second question is whether CPTPP reinforces the UK’s levels of statutory protection in the three areas. Our answer to that question is yes. It is actually in a similar way to the first question, which is that there are additional obligations in CPTPP on environmental protection, which have two effects. They first require the UK to maintain its levels of environmental protection. Secondly, indirectly, it allows the UK to ensure that other countries maintain their levels of environmental protection. In that sense, CPTPP enhances and strengthens the UK’s ability to maintain its statutory protections.
The third question is whether the CPTPP otherwise affects the ability of the UK to adopt statutory protections. We looked at a variety of different ways. This question is a miscellaneous box, really. Our overall answer was that no, it does not otherwise affect the UK’s ability to maintain its statutory protections or to adopt new statutory protections.
First, we looked at decision making under CPTPP, where we, at the moment, did not see any cause for concern. We noted that, in the future, Parliament might want to keep an eye on decisions that can be taken under the treaty, because they could have a potential impact on statutory protections. It was not necessary that these decisions should pose any problem. It is something that Parliament needs to keep an eye on. It is a question of Government policy, essentially.
Secondly, we looked at the impact of increased imports under CPTPP on the UK’s border controls, which is a capacity issue. We did not see any necessary problems there. I might add that the FSA and the FSS, which also looked at this question in a slightly different context, came to the same conclusion.
Thirdly, we looked at certain concerns—I think we might come on to these later—which were raised during our consultation process, concerning issues such as hormone-treated beef, et cetera. Maybe we will look at those a little later.
Q4 Chair: Mr Bartels, can I double-check something? One key question that we have to reflect on is about the way that our trade agreements tesselate and interact with each other. We have some certification requirements that are about to become imposed on, for example, agricultural imports from the EU. That is going to entail a cost for importers. Is there a similar certification process for agricultural imports from CPTPP countries? As far as you know, will they be subject to checks and certification requirements similar to those that agricultural imports from the EU will be subject to?
Professor Bartels: Actually, nothing changes there because CPTPP does not impose any additional requirements on certification. It is important to note that, not only does the UK import from all CPTPP countries already, but it also has free trade agreements with nine of those CPTPP countries already. The CPTPP does not change anything in that regard. It is not like it is a brand new agreement in a wild-west world. It actually builds on what already exists.
Q5 Anthony Mangnall: I am going to wrap up because I do not want to take too much time. You started out your remarks saying that on the whole this is good. Is this good because it does not have an impact on our farming community, or is it good because it may open up new markets for us to be able to export to?
Can I also make the point that the Committee, when it was the standalone International Trade Committee, was pretty horrified by the Government’s approach around responding to the TAC’s report on the Australia free trade agreement? Could you say a few words about the process in terms of including TAC reports in the CRAG process and making sure Parliament has proper visibility of your reports and an understanding of the trade deals that we are signing?
Professor Bartels: On the first question, as I said, we do not look at exports at all, so I cannot say whether it is good for exports. I am not saying either way. It was not our mandate. When I said that on the whole it is good news, I was referring to the potential negative impacts that CPTPP might have on the agricultural sector in the UK. I will get on to where we saw that as being something to keep an eye on and where there was not actually so much of a problem.
When it comes to the Government’s response to the TAC advice, that is really something that was between the previous Committee and the Government. That was not something that I was really involved in. Our work was done with the release of the report, apart from speaking about it like I am now. I myself did not think that there was so much to be concerned about. Our report was presented to Parliament. As far as I am concerned, that is my job done. It was done in good time and the Government did a very good job of doing that. There was plenty of time to look at what we wrote.
As for the Government’s own response to that, honestly I cannot remember what the time period was before the Section 42 report came out. My memory was that the Section 42 report did not actually shatter the earth in any particular way. Our advice basically said, “It is okay”, with a couple of points to keep an eye on in the future. It was not as though we made any huge criticisms that the Government were under a huge amount of pressure to respond to. That was also true of the New Zealand advice and true of CPTPP also. I know that there was an exchange of letters between the SOS and the Committee at that time. I could only comment on that as a bystander.
Q6 Sir Robert Goodwill: You have given us some reassurances on some of the protections that we have in place, for example for hormone implants used in beef production. They were used here in the UK 40 years ago but, with some problems when withdrawal periods were not being properly maintained, they were banned here. I think that farmers are reassured from what you have said. The same would apply to ractopamine-fed pork, which is widely used outside the European Union but banned by 160 nations around the world.
Some of the bans are more to do with the precautionary principle than scientific evidence. Chlorine-washed chicken would be a case in point. We use chlorinated water to wash salads that are bagged and sold in supermarkets. It is the fact that the production methods used in places such as the United States and elsewhere are so intensive that the level of pathogen means that the chlorine has to be used. Is it more likely that that type of ban would be challenged where there is not a direct link to the product being sold? It is about the production method.
Professor Bartels: I should say that we did not have the chlorine chicken issue raised as a concern by anyone. That is mainly a US thing and the US is not party to CPTPP. That is not really something that was raised before us. You are right: we looked at hormones, battery-caged eggs, GMOs and the like, but not chlorine chicken. In principle, of course that is an issue that arises under trade agreements, definitely.
You need to take into account what trade agreements say about the precautionary principle, the use of science and, in particular—this is relevant to the chlorine chicken issue—the UK’s ability to block imports on public morals grounds. That is one of the rationales for not allowing the use of chlorine. Essentially, you get to mistreat the chickens and then you wash away your sins using chlorine at the end. It is not only about human health, if at all about human health.
I can answer that relatively concisely in a couple of ways. First, our view is that CPTPP does not change the legal position under WTO law on these issues except by actually enhancing a little bit on the environmental front. When it comes to human health, I should say that TAC does not look at human health. That is for the FSA and the FSS. Speaking more generally, when it comes to issues of human health or protection of the UK’s environment and so on, our view is that CPTPP does not change the position.
What that position actually is is not something that we looked at, because we were not asked to investigate that position. We were asked to investigate the potential increment as between CPTPP and the existing legal position. In other words, does CPTPP make the situation harder for the UK? Our answer is that no, it does not make it harder, but that of course does not answer the question of whether these bans are legal or illegal. I will explain a little bit what that position is under WTO law.
Chair: Please be very brief, Professor Bartels. The clock is against us a little bit.
Professor Bartels: Very briefly, trade law allows you to adopt protective measures when there is not sufficient science to know what the risks are. How do you know whether there is sufficient science? You ask the scientists. One way of understanding it is that, if the scientists say, “There is enough science to at least conduct a risk assessment”, you do not have this precautionary principle safe harbour. If there is enough science, you need to conduct a risk assessment.
Scientists are going to disagree. As a Government, you are allowed to base your measure on the scientist who takes the most precautionary view. You are allowed to adopt relatively safe measures, provided there is at least some scientific backing for it. That is essentially it. If there is no science according to the scientists, you can do what you want. As soon as there is science, you can choose the science that suits you and regulate on that basis. That is the abstract. I cannot give a hard and fast answer on the particular cases that you mentioned.
Q7 Sir Robert Goodwill: Looking at pesticides that have been banned, in some cases it is because of residues that can have a direct effect on human health. We banned chlorothalonil as a fungicide in weeds. In other cases, if you look at neonicotinoids, they were banned because of the effect on bees. There was no suggestion that the oilseed rape crops treated with these chemicals had any human health implications. Therefore, if those are being used in Canada, we cannot say that that is a risk to the human health here. It might be a problem for beekeepers in Canada but that is not something where we could necessarily stand up a case that we should not import those.
In the case of sugar, because it is a refined product, there is not even any DNA in the product or any pesticides as it is so refined. Are we on a less firm wicket in the some of the cases where we have banned a product for environmental reasons but not on human health grounds?
Professor Bartels: I would slice it slightly differently, for explanatory purposes, but you are absolutely right in what you say. The important distinction is between risks that arise in your territory and, to be completely accurate, concerning shared resources, such as on the high seas and so on, and risks that arise solely in the territories of other countries. When it comes to pesticides, for instance, yes, when we are talking about residues almost always that is concerned with risks in our country: risks to human health, the environment, animals who eat the stuff and so on.
Some pesticide regulation is solely concerned with risks arising in the environment of the countries of production. You are absolutely right: in principle, under international law, you do not get to protect other countries’ environments. If they want to pollute their rivers and there is no matter of international concern that might give you some right to regulate, you simply cannot do it. When it comes to the neonics and so on, I know that there is an argument that says, “It is all about biodiversity and that is a matter of international concern”, and so on, but that is the line of argument that you need to follow.
When it comes to your own domestic concerns, you get off first base. You get to regulate, provided you do it properly. When it comes to extraterritorial risks, there is a lot more investigation that needs to be done. Essentially, you need to find some purchase. You need to find a legal interest in order to be able to regulate.
Q8 Chair: I want to try to crystallise this for the Committee, Professor Bartels. We have a number of bans in place on hormone-fed beef, certain kinds of pork and chlorine-washed chicken. Could those bans be challenged through the provisions of CPTPP, or would we be allowed to keep those bans in place because of the way that we have enshrined them?
Professor Bartels: No, the way we have enshrined them is irrelevant. No, of course they can be challenged.
Q9 Chair: They can, so yes, they can be challenged.
Professor Bartels: Yes, absolutely. Anything the Government do can be challenged under international law.
Q10 Chair: In your view, can they be challenged successfully?
Professor Bartels: With my TAC hat on, I cannot answer that question because we did not look at it. Even if I take that hat off, I cannot really give you an answer because it depends on the science and I do not know what the science is. I can say that there was a challenge to the EU’s beef hormone ban in the late 1990s, which was unsuccessful for the EU. The EU maintained its ban nonetheless and essentially bought off the complainants with tariff-free quotas on high-quality beef. The UK maintains that ban. That is just a fact and people can draw from that what they like, but the science might have changed. Views might have changed.
When it comes to chlorine chicken, we just do not know. There was actually a complaint that was lodged by the US—I cannot remember when; it was 15 years ago or so—but it died. It withdrew it. It just died. It never amounted to much. I do not know whether that would be successful. There are many theses written on this point coming to different conclusions. Again, it depends a little bit on the science.
When it comes to other topics, we would probably need to give similar answers. Unfortunately, I cannot give you a firm answer to all this, but I can say that there is no guarantee that there would be no challenge under either CPTPP or WTO law. Importantly, now with my TAC hat back on, our view was that CPTPP did not change the picture. That is what we were looking at. We did not give an answer, but we did not think that CPTPP made anything worse.
Q11 Chair: We have some bans in place that rest on a precautionary principle. The new treaty may open us to challenge but the success of those challenges entirely depends on the science that underpins the bans in the first place.
Professor Bartels: I would not even say that the new treaty opens us up to challenges. The possibility of those challenges pre-exists CPTPP and the Australia and New Zealand agreements. That possibility has been there ever since 1995 and whenever those bans came in. I would not say that the picture has changed at all with CPTPP.
Q12 Chair: The new treaty does not in any way really weaken the strength of those precautionary bans.
Professor Bartels: No.
Chair: That is really helpful. Thank you.
Q13 Anthony Mangnall: I wonder whether I could come back to you on enforcement. You said in your opening remarks about whether there was the risk of a future changing relationship. Do you have any worries about the enforcement mechanisms that are there to hold standards to the highest level?
Professor Bartels: You mean under the treaty. There are enforcement mechanisms for the other parties, the CPTPP parties, to hold the UK to account, but also for the UK to hold them to account. When it comes to them holding the UK to account, it is probably not of such concern when it comes to, let us say, the UK’s environmental laws more generally because that is already covered under the UK’s trade and co‑operation agreement with the EU. The enforcement mechanism and what is covered there is pretty rock solid. We would only be talking maybe about products that a CPTPP country exports to the UK that the EU does not, and therefore there is a difference in terms of interest in wanting the UK to enforce.
In standard trade law enforcement, you bring a case and get to enforce it by imposing customs duties, essentially, if the UK does not comply and vice versa. It is perfectly normal and there is really not that much to say about it. It is just the way of trade agreements. There is nothing unusual about it.
Q14 Anthony Mangnall: One criticism that has come out around CPTPP has been around the fact that an enhanced relationship between the UK and other CPTPP members may lead to extra deforestation, an increase of palm oil, et cetera. I wondered whether you wanted to make any point around that. There is obviously a consequence of who we sign trade deals with.
Professor Bartels: Absolutely, yes. It is a good question. This was a concern that was raised by a number of our consultees, and very validly so. There is a reduction in tariffs for palm oil, although the amount of the tariff reduction depends very much on whether we are talking about processed or raw palm oil. We are talking about Malaysia, because Malaysia is a CPTPP country. The other two countries that make palm oil in significant quantities are Indonesia and Papua New Guinea.
I would not say that the situation in Malaysia is perfect. We looked at this and it is a work in progress. The Malaysian Government are bringing in a new certification standard that is designed to improve matters. That is an important fact. However—and this is important from our point of view and maybe not important for others who want the world to be as good as it possibly can—our job was to look at whether CPTPP itself was likely to make things worse. In this context, we looked at what it would mean for palm oil to come from Malaysia as opposed to other actual sources of supply. Those sources of supply are Papua New Guinea on the one hand and Indonesia on the other.
Papua New Guinea exports at 0% duty at the moment because it is a developing country and comes in under the United Kingdom’s developing country scheme, which provides duty-free imports. There is not going to be any shifting from Papua New Guinea to Malaysia because there is no tariff benefit. From Indonesia there is, because Indonesia has no free trade agreement with us. It does not benefit from zero duty on palm oil.
We were looking at the situation with palm oil as between Indonesia and Malaysia. Our conclusion was that the Malaysian certification scheme and standards for production of palm oil are—I will put this very deliberately—certainly not worse than those in Indonesia. Therefore, we did not think that a shifting of supply of palm oil exports from Indonesian sources to Malaysian sources would pose any greater risk of deforestation at a global level, contribution to climate change or loss of biodiversity and all the rest of it.
Q15 Anthony Mangnall: There is quite a long way between “not worse” and “better”. I guess that the interesting point from where you sit is whether you think our standards will have a knock-on impact on CPTPP members. We proudly, in this place, quite often, at least from our side, boast about the fact that we have some of the highest animal welfare standards in the world. We are very rigorous about this. You are giving a good example about Malaysia actually introducing certification and doing better than other countries that produce palm oil. Are you seeing this in other areas in terms of agriculture, where other countries within CPTPP are following our lead, upgrading their standards or trying to do better?
Professor Bartels: Actually, something like 86% of UK imports already require the highest possible standard, which is higher than the Malaysian national standard. There is sufficient Malaysian product that meets that high standard. It is called RSPO certification level. That has been there for a long time, so the Malaysians suppliers that have been shipping to the UK and meeting that standard have been doing that anyway.
There is some connection between the UK and Malaysia, which is committed to improving its own system. That is maybe not so much because of the UK’s requirements but because of the EU’s requirements. The EU deforestation regulation is much tougher than the UK’s certification requirements. This is the way of the world. It makes a difference when countries where the palm oil ends up require that palm oil be made in a certain way. You can say that about all products and various concerns, including animal welfare. In general terms, high standards imposed by an importing country have an effect on production.
Q16 Anthony Mangnall: Can I finally ask you about your set-up as the TAC and how well resourced you feel you are, how much access you get within the DBT and whether you think that you have all the tools at your disposal to do the job that you are doing?
Professor Bartels: I am very happy with the way that we have been resourced. You might remember that I was asked this question previously about a year ago. I cannot remember whether I was speaking about the Australia or the New Zealand agreement. I said that we could do with some additional resources. I am pleased to say that, as a result of that conversation and the report of your predecessor Committee, we were provided with a full-time researcher, who has been excellent.
We have very good trust now, given that we have been at this for a little while, within the Department to be able to obtain the information that we need in order to be able to do our job. We also have made very good connections with other agencies, such as, for instance, the AHDB and so on. We have been at it now for about two years and established good working relationships with a lot of others in the area. This was a very satisfactory process.
Chair: Excellent. Thank you very much, Professor Bartels. We are incredibly grateful to you. You have given us a pretty good amount of reassurance this morning that this new treaty is not going to provoke a race to the bottom in environmental and food standards. That is an incredibly useful setting of the stage for the questions that we now move on to.