David Henig – Written Evidence (TWP0009)

This brief evidence is provided by David Henig, Director of the UK Trade Policy Project at the specialist trade policy think-tank European Centre for International Political Economy (ECIPE). I worked for the UK government until 2018, with particular interest in the scrutiny of trade agreements through my involvement in controversial EU-US (TTIP – Transtlantic Trade and Investment Partnership) trade talks between 2013 and 2016. I offer some brief thoughts below which I will be happy to expand upon as your work progresses.

How could Parliament best engage with the Government’s conduct of treaty negotiations? And how can Parliament best engage with interested stakeholders about treaty negotiations as they proceed?

Free Trade Agreements[1] (FTAs) are lengthy treaties setting out the rules for preferential trade over and above World Trade Organisation (WTO) levels of access taking place between two or more customs territories. Other agreements such as Mutual Recognition Agreements (MRAs) focus on regulations, and are not considered preferential in WTO terms, but still set rules for trade. Rules can come in many areas including environment, intellectual property, customs, labour relations, technical standards, food safety and many more. It is therefore important that treaties are subject to detailed scrutiny to understand the implications of these rules.

The rules are often expressed in slightly ambiguous ways, requiring interpretation, cross reference to other treaties, and referral to international case law. Ideally MPs should be provided with a detailed interpretation of commitments contained within an FTA before they approve of the treaty. Even better would be to be discussing during the negotiating process when there is a greater chance for the government to agree changes.

This did not happen for example with regard to the Northern Ireland protocol and indeed legal and trade experts are still discussing what the individual provisions mean. For example the protocol states in Article 5 paragraph 3 that “Legislation as defined in point (2) of Article 5 of Regulation (EU) No 952/2013 shall apply to and in the United Kingdom in respect of Northern Ireland”, point 2 of Article 5 of EU 952/2013 in turn states that “"customs legislation" means the body of legislation made up of all of the following:

(a) the Code and the provisions supplementing or implementing it adopted at Union or national level;

(b) the Common Customs Tariff;

(c)the legislation setting up a Union system of reliefs from customs duty;

(d)international agreements containing customs provisions, insofar as they are applicable in the Union;”

Thus the entire EU customs code applies to Northern Ireland under the protocol, but this is not directly stated. Article 6 paragraph 1 contains another very good example, when saying “Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market” where it is arguable that the key words are “this Protocol” since there are likely to be other treaties which require the UK to fetter trade between Northern Ireland and Great Britain, not least the WTO MFN requirement under which goods entering the UK from the EU should not be treated differently to those entering from elsewhere.

An FTA will be much more substantial and the commitments will similarly need to be interpreted over some time. This constitutes an argument for commencing that process well ahead of the completion of negotiation, or allowing considerable time at that point for ratification. Since the expectation is that the government will be in a hurry to ratify new treaties ideally as much scrutiny as possible should be done ahead of this. It should also be noted that other countries will have previously scrutinised treaties they have signed, whereas for the UK this is the first time and therefore every clause may have an important meaning.

The traditional select committee approach of questioning witnesses and producing a report at the end of a negotiation does not feel like it will be adequate for this task of scrutiny. Initially while the UK government is negotiating is would be useful for the committee to have a role in explaining some of the important traditional concepts of trade agreements, in particular in chapters such as Technical Barriers to Trade (TBT) and Sanitary and Phyto-Sanitary (SPS) where equivalence plays an important role but is not always well understood. These standard guides, to be issued periodically, could then be supplemented by particular scrutiny on areas of new commitments, where the government could indicate to the committee that departures mean a particular focus should be given, without necessarily having to reveal the final result of talks. This scrutiny could be carried out through some questioning of expert witnesses but also guides developed by experts in particular areas commissioned specifically for the purpose.

Stakeholders should have the ability to interact with government through negotiations, both in terms of new commitments they would like to see, as well as concerns about those that may be sought by the other side. The committee could seek written evidence and then publish a digest of this at periodic intervals to indicate areas that appear to be of particular concern. This would help to amplify conversations particularly when individual stakeholders may have concerns that they are not being sufficiently considered by government.

The committee may find it useful at times to hold private hearings with government officials to assess their approach on different issues. These would contribute as background to reports that may be produced.

Considering that several treaties will be negotiated simultaneously it is difficult to see how a single committee has the possibility to thoroughly consider all of them. A steady stream of reports through the lifecycle of negotiations might be one way to approach this difficulty. I would also suggest focusing particularly on rules and regulations rather than the details of market access which are likely to be considered in detail by others.

What role should the UK Parliament have in ensuring that the Government takes the views of the devolved administrations into account during the negotiation phase of treaties, and how best can it fulfill that role?

The role of devolved administrations in trade deals is unclear, from their level of involvement to their need to ratify and the way in which trade agreement commitments will cut across devolved authority responsibilities. It would be useful for the committee to flag this absence of clarity including particular scenarios of concern, such as for example agricultural responsibilities, and the ways in which this could be resolved. The committee could draw upon this initial work to consider devolved issues in particular treaties. However I do not feel that it should be the responsibility of the committee to carry out detailed scrutiny on behalf of devolved authorities, as they can be expected to carry out their own enquiries.

What can the UK learn from the scrutiny systems of other parliaments, including Westminster-style democracies such as Australia and Canada, about best practices for treaty scrutiny? Are there any lessons to be learned from other jurisdictions about the principles and mechanics of scrutiny, in particular about:

a. How legislatures can be kept informed during the negotiation of treaties;

b. How much information legislatures might receive about the process and content of negotiations, and how this information might be provided;

c. How legislatures can strike the right balance between seeking access to sensitive information about ongoing negotiations from their governments and ensuring transparency in their own work;

d. How different models for legislatures’ involvement in treaty scrutiny, including for example providing negotiating mandates before treaty negotiations begin, affect how negotiations are conducted and the results they eventually achieve;

e. How governments notify legislatures about amendments to treaties and questions that are sent for dispute settlement under agreements; and

f. How legislatures handle political agreements that might not constitute treaties, such as agreements that might constitute Memoranda of Understanding in the UK system, or agreements with non-state entities.

I have only seen the scrutiny of the European Parliament at close quarters, and I think there is much to learn from this, including the resolutions passed during the negotiating process on what MEPs hope to see, hearings in committees, the ability of those committees to commission detailed studies, and the use of rapporteurs and shadow rapporteurs to ensure that each agreement has individual MEPs in each party who can specialise in that one issue. The international trade committee in particular hears frequently from negotiators on different dossiers throughout the lifecycle of a trade deal.

More broadly, are there any examples you might give of where scrutiny of treaty negotiations or a treaty text by a legislature has been particularly effective, as a whole or about some of the specific issues listed above? Are there any specific improvements that you think could be made to the Westminster system to improve its effectiveness?

I think serious consideration should be given to Parliament through this committee or others commissioning early in the negotiating process a comprehensive analysis and impact assessment of an FTA from a neutral body, which can be published soon after completion in order to provide greater information to the ratification process. As above, I think it will be difficult for the committee to do this without outside help.

5 June 2020