UK trade policy transparency and scrutiny Contents

2Trade, trust and transparency

Drivers of transparency

7.We received multiple pieces of evidence setting out why transparency is important in relation to trade policy and negotiations.4 War on Want told us:

Trade negotiations are matters of public policy, not commercial contracts, and should be subject to the standards of transparency and scrutiny expected of public policy documents. Modern trade deals affect a wide range of areas of public policy, from food safety to the environment to workers’ rights. The public has a right to know what is being included in these deals which will have not just economic but also social, cultural, and environmental impacts.5

8.Nick Dearden, Director of Global Justice Now, also argued that trade policy addresses a range of policy areas beyond tariffs, including consumer and environmental protections.6 Anna Fielder, Senior Policy Adviser for the Transatlantic Consumer Dialogue, argued that negotiation of trade agreements “goes on in secret chambers” and suggested that this was “a driver of why the public does not trust them anymore.”7

Transparency at the EU level

9.The Transatlantic Trade and Investment Partnership (TTIP) negotiations between the EU and the US were criticised for their lack of transparency, leading to a considerable backlash from stakeholder groups.8 We were told that, subsequently, “all EU institutional actors radically changed their transparency procedures”.9 In its “Trade for All” strategy, published in 2015, the European Commission said it would “invite the Council to disclose all FTA negotiating directives [also known as ‘mandates’] immediately after their adoption”;10 “extend TTIP practices of publishing EU [negotiation proposal] texts online for all trade and investment negotiations”; and “after finalising negotiations, publish the text of the agreement immediately, as it stands, without waiting for the legal revision to be completed.”11

10.Dr Elaine Fahey, Professor of Law & Associate Dean at City University, told us:

It is highly advisable that the UK Parliament and devolved nations learn also from the EU on best practice as to provision of documents in international trade negotiations […] The UK should be mindful of the broader trajectory of law and governance in the negotiation of international trade in the digital era which has shifted radically towards transparency at all levels of law-making and practice.12

The UK’s approach to transparency

11.In its July White paper, Preparing our future UK Trade Policy, the Government committed itself to a “transparent and inclusive” trade policy.13 In evidence to our Committee, the Minister for Trade Policy, George Hollingbery, told us that the Government had considered the EU’s experience in relation to TTIP and had:

reached the conclusion that we have to anticipate problems of that sort early on. The best way to do that is to be transparent so people know what we are doing at every stage.14

12.The Government has committed itself to publishing an “Outline Approach” for future trade negotiations, “setting out the high-level objectives and scope of that negotiation.” The Government has also stated that this document will be accompanied by a scoping assessment, but has not provided detail of what will be included in such an assessment.15

13.Despite these statements from the Government, David Henig, UK Director at the European Centre for International Political Economy, referred to “a culture of secrecy”,16 and Nick Dearden, from Global Justice Now, suggested that “we are in a situation where we do not really know what their [DIT’s] strategy on trade is or what their objectives are.”17 He also said that the Department had a poor track record of openness and transparency, noting:

statistics that were published by the Government […] showed that the Department for International Trade have granted less than 27% of the [Freedom of Information] requests they have received in full. They have turned down 48% of all requests they have received in full and they are the worst Department in terms of responding late without acceptable reasons; about 34% of responses fall into that category.18

Proposals for increased transparency

Presumption of transparency

14.A document entitled A Trade Model That Works for Everyone sets out the preferred approach to transparency of a range of business and civil society groups, including the British Chambers of Commerce, the Confederation of British Industry (CBI), the EEF, the Federation of Small Businesses (FSB), the Institute of Export and International Trade, the Institute of Directors (IoD), the International Chamber of Commerce (ICC) UK, the Trades Union Congress (TUC), Unite, Which?, and over 85 other organisations. It calls for:

A presumption of transparency for all negotiating texts—with clear and detailed explanation for anything that’s been withheld. All texts to be open to MPs. One element should be the publication of offers made to counterparties [i.e. those being negotiated with], with explanatory memoranda to give relevant context, as soon as possible after they are tabled, understanding that it may be necessary to preserve negotiating room to wait to publish until after the negotiating round where the offer is made.19

15.Mr Dearden, of Global Justice Now, told us that “it should be about the Government having to make a clear argument about why something should be kept confidential, rather than the other way round.”20

16.Derek Wyatt QC, Emeritus Professor of Law at St Edmund Hall, University of Oxford, similarly told us:

If a document enables Parliament and public to understand the impact of future trade negotiations in the UK, the document should be published, unless publication would undermine the negotiating position of the UK Government, or breach the confidentiality of a third party.

He also pointed out that:

Confidentiality agreements between the UK and a foreign country concerning trade negotiations have the potential to limit the publication of documents, and such agreements should be subject to rigorous scrutiny.21

Statutory transparency requirements

17.The Institute for Government (IfG) has called for DIT to have “statutory transparency requirements” that include the requirement to publish:

i)a trade strategy

ii)the negotiating objectives for each bilateral, plurilateral or multilateral negotiation

iii)the impact assessments conducted prior to negotiations

iv)the legal text of FTAs, once negotiations are concluded but before the agreement is signed

v)evaluations of trade agreements after they have come into force–although if, as per the above recommendation, the UK adopts an independent advisory body, then this organisation should be responsible

[ … ]22

18.Regarding the publication of negotiating mandates (or directives), the IfG argued that:

Government ministers must be disabused of their view–often repeated, but never correct–that published mandates approved by ministerial and parliamentary colleagues make negotiators’ jobs more difficult. The opposite is true. Mandates give negotiators direction, limit their ability for concession and force governments to be realistic about potential negotiating outcomes.23

Public engagement

19.War on Want argued that access to documents is important for public understanding and debate, and that this can provide “background and context” for formal, specific consultations.24 Public consultations are discussed in Chapter 5.

20.If the Government wishes to increase public trust in UK trade policy, it should operate with a presumption of transparency. All documentation relating to trade negotiations should be made available unless there is a genuine and reasonable justification for keeping specific documents confidential, such as the risk of undermining the UK’s negotiating position. The Government must, as a minimum, publish trade policy documentation equivalent to that which is published at the EU level. The EU’s transparency commitments have been developed in direct response to public and stakeholder concerns raised during the TTIP negotiations. To deliver anything less would risk undermining public trust in UK trade policy from the outset.

21.We welcome the Government’s commitment to publishing an Outline Approach for each negotiation—but note that it has provided limited information about what will be included in this document. This Outline Approach should be equivalent to EU trade negotiating mandates, setting out clear instructions for UK negotiators. The Government should ensure that such a mandate includes no less information than the EU provides—notably, for instance, in the recently approved mandates for negotiations with Australia and New Zealand.

22.All information published by the Government relating to each trade negotiation should be available on a single page on the website. It should be presented in a clear and easily navigable way, and jargon should be avoided where possible. The Government should also publish accessible summaries or factsheets in relation to negotiating documents.

4 For example: Trade Justice Movement (UTP0005), Amnesty International UK (UTP0003).

5 War on Want (UTP0027)

6 Q93

7 Q93

8 See, for example: Q93 [Nick Dearden].

9 Professor Elaine Fahey (UTP0012)

10 In the EU, the European Commission is authorised to negotiate trade agreements by a “mandate” approved by the Council of Ministers (composed of Member State representatives). The European Commission produces the draft mandate considered by the Council.

12 Professor Elaine Fahey (UTP0012)

13 Department for International Trade, Preparing for our future UK trade policy, Cm 9470, October 2017

21 Derrick Wyatt QC (UTP0002)

22 Oliver Ilott, Ines Stelk, Jill Rutter, Taking back control of trade policy, Institute for Government, May 2017

23 Oliver Ilott, Ines Stelk, Jill Rutter, Taking back control of trade policy, Institute for Government, May 2017

24 War on Want (UTP0027)

Published: 28 December 2018