Following Brexit, the UK has reclaimed its competence in trade and investment policy and its role as the sole negotiator of trade and investment agreements.
However, to take advantage of a golden opportunity to reshape trade and investment policy in the UK, Dr Jasem Tarawneh and Dr Nicolette Butler recommend that the government adopts an ambitious approach to reforming the substantive and procedural frameworks for negotiating and ratifying agreements.
- A post-Brexit UK has the opportunity to position itself as a leading force in global trade and investment law and policy.
- Reforms should incorporate forward-thinking, evidenced-based trade and investment objectives and policies, including high regulatory standards, transparency and trade policy inclusivity.
- To achieve this, we recommend adopting the ten-point template of actions outlined below.
Structural Clarity
Clarifying the structure and role of the Department for International Trade is required (including the newly created Office for Investment), as well as outlining the roles of all advisory boards and committees, such as the Strategic Trade Advisory Group. Additionally, formulating and clarifying mechanisms for interaction and consultation between relevant government departments on cross-cutting international trade issues would also be beneficial.
Accessibility of Information
A ‘one-stop-shop’ platform should be created where trade-related documentation is housed, including committee reports, trade agreements, and negotiating objectives. This will simplify research processes for interested parties. This forum could also act as a repository and focal point for APPGs to build on each other’s work rather than replicate similar projects. This would enhance transparency and aid comprehension of often complicated and contentious trade-related matters.
Constitutional Reform
An early and meaningful parliamentary scrutiny of international treaties and their negotiation process should be introduced. At present, treaties are ‘laid before’ parliament prior to final ratification (according to the Constitutional Reform and Governance Act 2010), but in reality this process can be regarded as an empty gesture, with MPs possessing no real influence. Parliament views the treaty right at the end of the negotiating process, therefore MPs have no legal platform or mechanism to engage with or influence the direction, objectives, political mandate or the execution of trade negotiations.
Impact Mapping
There is a gaping hole in the government’s approach to the initiation and completion of trade negotiations. This oversight lies in the government’s inability and unwillingness to complete comprehensive impact assessment studies before treaty negotiations begin, which aim to determine the true potential impact of any proposed trade and investment agreement in important areas such as the wider economy and the environment. Strong early impact mapping will help to improve the current fragmented approach to trade. The government should adopt a comprehensive and inclusive impact assessment framework that takes into consideration trade-related issues. Such assessments should also include a regular ex post impact update (5 year intervals). Moreover, the government’s current approach to impact assessment is heavily focused on basic economic outcomes that are predicted using flawed CGE modelling which does not take into account the investment angle in trade and investment agreements
Comprehensive Stakeholder Engagement
The few committees and councils that provide advice to government on its trade and investment policy are limited in terms of membership numbers and diversity. A comprehensive approach that takes into consideration the views of civil society should be in place. At present, calls for evidence to parliamentary committees are not well publicised or easy for lay persons to access and engage with. There is a clear emphasis on the inclusion of stakeholders in business and industry rather than civil society. This lack of transparency and engagement puts the UK at a competitive disadvantage with our negotiating partners, who in most cases, have a more transparent and robust process of stakeholder engagement. Take for example the EU, who have very inclusive and open dialogues around trade negotiations.
‘Fit for Purpose’ Investment Policy
Little is known about the government’s approach and attitude to contentious investment-related issues. This is illustrated by the UK-Japan treaty which does not include a comprehensive investment chapter. The text of the recently announced UK-Australia agreement, which is being touted as a possible model for the UK’s future trade and investment treaties, is yet to be finalised and publicised. The UK government is actively pursuing accession to the CPTPP agreement, which includes the contentious ISDS dispute settlement. This is concerning given that other states are taking diverse approaches in relation to investment dispute settlement, for example the EU’s Investment Court System and the Multilateral Investment Court.
Protection of Public Services
A commitment to exclude public services, including the NHS, from all trade and investment agreements and should be enshrined in domestic legislation. This opportunity was missed in the Trade Act 2021. For example, a ballot Bill was tabled to exclude requirements relating to NHS, however, the Bill was not passed. That missed opportunity could result in unavoidable and irreversible marketisation of UK healthcare, which is a threat that we have been warned about by leading healthcare professionals and bodies on numerous occasions. The exclusion of NHS services is of paramount importance for several reasons including the safe storage and processing of patient data, the stability of drugs prices, and the accessibility and availability of NHS services on a national level.
Ambitious Regulatory Standards
In trade and investment agreements, the government should strive to uphold and implement the highest possible regulatory standards, especially in key sectors such as food, agriculture, animal welfare, data protection, and digital services, including financial services. In any negotiation, the government should make a commitment to align regulatory standards in accordance with the higher of the negotiating parties’ standards.
Coherent Trade and Investment Strategy
The government must provide a comprehensive, coherent and transparent framework that focuses on both trade and investment, rather emphasising trade only. Further, this framework should not prioritise the quantity of trade deals signed over the quality of the agreement. This approach should also justify the strategic necessity for any trade negotiation and agreement priority list; this includes not only the negotiating partner states, but also sectoral priorities. Most importantly, any negotiating framework adopted by the UK should embrace the need for multilateral engagement, whilst using it as a building block to refine the UK approach to bilateral and plurilateral agreements (the Singaporean example).
Integrated Trade Policy
The government should develop an integrated trade and investment policy that puts at its heart core rights and values, such as environmental protections and human rights, especially when selecting and prioritising negotiating partners and sectors. This holistic approach, where the core values of a democratic society are taken into consideration, is essential for the success of any trade treaty in the long run.
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