Despite the indisputable magnitude and importance of Brexit, it took months of constitutional battle between lawyers - not to mention seemingly endless debates on the floor of both Houses of Parliament - to secure Parliament’s role in triggering Article 50 and the eventual ‘meaningful vote’ on May’s deal. In fact, this hard-won privilege, which MPs hope to finally exercise this month, is not constitutionally guaranteed to members of either House, despite ‘Parliamentary sovereignty’ being at the core of the constitution.
The same mechanisms mean that, there is no guarantee in law that Parliament will have any say over a controversial trade deal with the US. While a political battle may well be fought to grant MPs a ‘meaningful vote’, there is nothing in British law which gives Parliament a say over setting a mandate for trade negotiations, overseeing the negotiation process, or even having a guaranteed debate or vote at the end of negotiations. This is despite the fact that a US trade deal could have sweeping effects on health standards, environmental policy, rule of law, food standards, local farmers and labour rights.
The reason for this is a historic convention preventing Parliament’s involvement in anything that could be considered foreign policy, which has traditionally and solely been the remit of the executive (the Prime Minister and her cabinet). Trade comes under foreign policy, rather than domestic policy - which is traditionally Parliament’s remit. As an EU member, our trade policy is determined in Brussels, with oversight from the European Parliament. A key promise made by a number of Brexiters on the right of the Tory Party is that Brexit will be an opportunity to take back control of our trade policy and pursue rapid, deregulatory deals with places like the US, Australia and Pacific nations.
Brexit means that, unless things change, our trade policy will go back to more or less what it was in 1924, when a convention called the Ponsonby Rule was established to give Parliament some (but very limited) oversight over the creation of international treaties. At the time, this was in reaction to the government signing secret defence treaties which were thought to have escalated tensions leading to First World War. The Constitutional Reform and Governance Act of 2010 could have been an opportunity to reform UK trade policy properly, but in fact did little more than enshrine the Ponsonby Rule in law.
Modern trade deals are very different from the ‘secret treaties’ that preceded the First World War. The last thirty years or so have seen a huge expansion in the public policy space covered by Free Trade Agreements (FTAs), and the emergence of super trade deals such as TTIP (a proposed EU-US trade deal) and CETA (an agreed EU-Canada deal). FTAs increasingly include regulatory cooperation, which involves harmonising regulations between countries on anything from medicines and car parts to financial services labour rights. TTIP and CETA contain(ed) investor protection provisions which allow multinationals to sue national governments for passing policy which damages their profitability. Today’s FTAs may also cover intellectual property rules, data transfer, restrictions on monetary policy, immigration and human rights. Regardless of one’s view on the economic and social benefits of modern FTAs, a healthy democracy requires that Parliament has a role in overseeing these agreements and is able to influence or reject them. But as with Brexit, this oversight is not constitutionally guaranteed.
A US trade deal is controversial on multiple fronts. Sensational news headlines on chlorinated chicken reiterate a more general point, which is that the US has lower health, environmental and animal welfare standards than the EU. A key priority for US negotiators will be to compete with British agriculture, which prides itself in its higher standards. Post-Brexit Britain will not be bound to EU environmental principles, such as the precautionary principle or the ‘polluter pays’ principle. This could mean ‘cheap, inhumanely produced’ bacon, hormone-impregnated beef, US investment in fracking and GM crops as well as the now infamous chlorinated chicken.
A deal with the US would signify an important, and potentially lasting, shift in our regulatory approach: towards lower standards and business-oriented deregulation. There is an important debate to be had as to whether we, as a country, want to move in this direction - towards US-style deregulation. But as things stand, our democratic representatives cannot even have this debate: the process of treaty scrutiny means that MPs are not guaranteed a debate or a meaningful vote on a trade deal with the US.
Last month Parliament’s own International Trade Committee published a report demanding a ‘meaningful role’ and veto power for MPs over post-Brexit trade agreements. These final months before Brexit offer a perfect chance for the government to reform democratic oversight in UK trade policy - before it’s too late.
David Lawrence is senior political adviser at the Trade Justice Movement. He tweets at @dc_lawrence. The Trade Justice Movement is a UK coalition of seventy civil society organisations, calling for trade rules that work for people and planet.