Shanker A. Singham is the Chairman of the Legatum Institute’s Special Trade Commission on trade.
The recent court case requiring the Government to put the issue of triggering Article 50 to Parliament underscores the need for a resolution of precisely how parliament will interface with the trade negotiating process – that’s to say, in relation both to the extraction from Europe and the new relationship with it, as well as to other agreements around the world that might be in play, provided the UK is outside the Customs Union and the EEA.
Many countries that have authority to negotiate their own trade agreements have wrestled with this problem. What is uniformly understood is that no nation will negotiate with another countries’ parliament or congress. Theresa May was in India last week, discussing a potential free trade agreement with India. If the UK remains part of the EEA, then no such agreement can be reached, because the UK will need to negotiate a services deal which will require it to put its own domestic regulation on the table – which it cannot do if still part of the EEA. Similarly, there is simply no way that the Indian government will negotiate any deal of any kind with the UK parliament. So how do trade deals actually get struck?
Most countries have some version of “fast track” trade negotiating authority. Under fast track, Parliament would have the final say. So any eventual agreement could be accepted or rejected by MPs and peers, just as the eventual UK-India FTA would be accepted or rejected by Parliament in its entirety. What parliament could not do is to intervene in the negotiation itself. To do so would unravel the agreement. In the United States, for example, trade agreements have long been negotiated under fast track procedures, largely because no sane country wants to negotiate with each and every member of the US congress.
This is not to say that Parliament would be silent during the negotiation process. Indeed, Parliament would certainly be offering its advice and guidance to UK negotiators through the relevant committees of jurisdiction, such as the Brexit committee and the International Trade committee. Scotland, Wales and Northern Ireland could also give UK negotiators the benefit of their advice and counsel through similar procedures. It is critical in this process that the UK’s trading partners know that they are ultimately negotiating with the UK government, and the only risk they are taking, and it is a substantial one, is that Parliament can reject any deal it does not like out of hand.
Such a fast track procedure could be relatively easily crafted; their history and effectiveness is tried and trusted throughout the world. The mechanism would be well understood by the UK’s trading partners, including the EU, and facilitate a smooth transition to negotiations. As long as the Bill is clean, it could be quite easily put together, and would not need to be in place before Article 50 is triggered. And as long as MPs understand what the future path is, and given that approximately 400 of the 650 parliamentary constituencies voted to leave, a suitable compromise should be relatively easy to achieve.
It is certainly true that key arguments that should have carried the day in the court case were not properly made. Rights pursuant to the European Communities Act are rights under treaty law that are constantly subject to alteration by decisions in the EU and its institutions, in which ministers participate by exercise of crown prerogative, in most cases without prior authorisation of Parliament, and some have questioned how this can have been the case under the broad restraint on the exercise of prerogative powers articulated by the High Court. This applies to double tax treaties and extradition treaties. To assert that Parliament is required, beyond advice and ultimate consent to the final agreement itself, would trump widely accepted constitutional thinking that the legislative has delegated foreign policy matters to the executive. This has been the guiding principle for foreign policy for centuries.
However, the real issue is how Parliament interfaces with this process in a manner that protects its supremacy. We have suggested a tried and trusted mechanism that the country can easily get behind. The UK is finding its feet in how to be an independent trade negotiator – which is scarcely surprising after 40 years. There will many twists and turns on its Brexit journey, and a steady hand is required to maintain progress without distraction. If May is to be able to deliver on the promise of free trade deals with other countries, then those other countries must trust her as a negotiator – and see that her hands are not tied.