My views on this vitally important and complex matter remain as they were - I believe we do need trade to be governed by international agreements but that these must provide security over the full breadth of public interest– including consumer and environmental protection- and not simply be a means by which unaccountable multi-national corporations are able to promote their own interests. The final agreement must protect the rights of democratically elected governments to protect public services- in this case, the NHS. The most controversial element of TTIP involves, of course, the disputes settlement mechanism, which permits investors to bring proceedings against a foreign government, in tribunals outside the domestic legal system.
Earlier this year, Parliament’s Business and Skills Select Committee produced a report on TTIP. The Committee concluded that it remained to be convinced that ISDS (Investor State Dispute Settlement) provisions were needed in TTIP and that the UK Government and the EU needed to show that the legal systems in the EU and US did not provide adequate protection for foreign investors before ISDS should be considered. If ISDS were to be included in the Treaty, the Committee recommended including a number of safeguards including: clauses to dismiss frivolous claims, a presumption that the loser should pay and a statement that Government’s right to regulate must take priority over investors’ rights to invest.
You may be interested to know that, following on from the pressure being placed on governments and the EU; the European Commission published proposals for the new system last month. The proposal includes a clause emphasising government’s right to set policy – in particular saying that:
1. The provisions of this section shall not affect the right of the Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives, such as the protection of public health, safety, environment or public morals, social or consumer protection or promotion and protection of cultural diversity.
2. For greater certainty, the provisions of this section shall not be interpreted as a commitment from a Party that it will not change the legal and regulatory framework, including in a manner that may negatively affect the operation of covered investments or the investor’s expectations of profits.
These are helpful, but of course the proposals now form the basis for the next round of negotiation with the US and we will see what emerges - including in respect of the machinery of the revised disputes mechanism.
There is still some considerable way to go on these negotiations and we will have to make a judgement based on the final outcome. We are not yet sure whether or not this will involve ratification by the British Parliament:
If a trade agreement comes under EU exclusive competence, the Council and the European Parliament adopt or reject it. The European Parliament cannot amend the agreement; it can accept or reject it under the ‘consent’ procedure, which includes a vote in the Committee for International Trade followed by a vote in the plenary. Then the Council authorises conclusion of the agreement.
If a trade agreement is mixed competence (EU and Member State competence), the Council, the European Parliament and all 28 Member States must adopt or ratify it. There is no fixed timetable for the ratification process and it could take two or more years.