Creating a Future Process on the Conclusion of ITAs within the UK

Clinic: Georgetown University Law, Spring 2019

Beneficiary: An Organisation based in the UK

Executive Summary

Read the full report here

Image Credit: MaxPixel

The UK´s exit from the European Union (EU) is not only the UK´s departure from the EU as a supranational organization, but also reflects a general rejection of the EU as a form of hyper-globalization manifested in the imbalance between the expansive supranational regulation of the single market and nationally-driven political authority. In the area of international trade, Brexit will give the UK Government the chance to craft its own trade policy and a treaty-making process that may respond to the specific needs of the UK. Further, Brexit is a unique opportunity for the UK to acknowledge the recent backlash against comprehensive free trade agreements and learn from other countries’ challenges. Failure to address the public’s yearning for a more inclusive and transparent trade treaty-making process may exacerbate domestic tensions and squander this rare opportunity.

In the spirit of learning from others’ successes and failures, this report cultivates the different ways in which the United States, Canada, and the European Union negotiate, approve, and implement international trade agreements. Utilizing these information, the report provides a detailed explanation of essential elements that a modern and inclusive trade treaty-making process may require in order to enable the UK to meet the challenges that far-reaching comprehensive free trade agreements pose, and ultimately to successfully negotiate and conclude such trade agreements. In case of a “no deal” scenario, Brexit makes it necessary to establish a new trade treaty-making process which follows the parameters of transparency, accountability and efficiency in a balanced manner throughout the four phases of pre-negotiation, negotiation, approval and post-ratification.

The proposed model treaty-making process is guided by three parameters: efficiency, transparency, and accountability. In light of the analysis articulated below and how current trade agreements result in particular domestic implications, a transparent, efficient, and accountable scheme addresses three major issues:

(1) Meaningful Involvement of the UK Parliament

An ideal trade treaty-making process requires the UK Parliament´s involvement in all four phases of the treaty-making process. Parliament may:

• issue a non-binding parliamentary resolution on the negotiation mandate of the UK Government during the pre-negotiation phase;

• be informed and consulted throughout the negotiation phase;

• send parliamentary observers to negotiations;

• be afforded a up or down vote for the approval of a signed (comprehensive) free trade agreement; and

• be in charge of making implementation legislation in post-ratification phase

(2) Inclusion of Devolved Administrations

Given the devolved administrations in the UK (Scotland, Wales and Northern Ireland) have executive and legislative powers, they are integral parts of the UK. This requires them to be integrated in the UK's new trade-treaty making process by:

• establishing a so-called Devolved Administrations Trade Forum in which devolved administrations have an institutionalized platform to discuss (general) trade policy matters with the UK Government;

• requiring the UK Government to consult with devolved administrations in the pre-negotiation phase;

• albeit with some constraints, allowing the executives of devolved administrations to actively participate in the UK Government´s negotiation team regarding devolved matters;

• introducing reporting and consultation obligations of the UK Government to devolved legislative bodies during negotiations; and • requiring the UK Government to assist devolved administration when implementing their obligations deriving from a trade agreement in the post-ratification phase.

(3) Active Engagement with Stakeholders from Civil Society & Businesses

The active engagement of the UK Government with stakeholders from civil society and businesses is crucial to understand the concerns and needs of stakeholders as well as to gain their trust and support. Thus, a modern trade treaty-making process requires:

• creating a website that can disseminate all trade-related information in a user-friendly and digestible manner;

• regular meetings with civil society (e.g. NGOs and unions);

• reforming the already existing Strategic Trade Advisory Group (STAG) and make it more inclusive as well as democratically anchored;

• having institutionalized online consultations, e.g. with businesses, in the pre-negotiation phase;

• consulting with STAG during the negotiation; and

• give STAG a voice in the post-ratification phase by including it in the ex post-evaluations of (comprehensive) free trade agreements.

Finally, the UK Government may put the new trade treaty-making process on a statutory footing as well as develop guidelines of best practices covering all elements of the process, in particular those which require cooperation or communication within the Government or with certain institutions or bodies included to the treaty-making process, e.g. the UK Parliament or the Devolved Administrations Trade Forum. On the long-term, this will facilitate the entire treaty-making process and make it more efficient, while ensuring transparency and accountability of the UK Government to Parliament and other stakeholders.

The full report can be read here.

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