- The UK Government is facing legal action over its failure to give the public a say on post-Brexit trade deals, despite the risks they pose to the environment.
- Latest legal challenge comes as the UK government seeks to push the UK-Australia deal through Parliament with no guarantee it will be debated or voted on by MPs.
- A coalition of NGOs, including WWF, Soil Association and Tenant Farmers’ Association, has lodged a formal complaint accusing the Department of International Trade of breaching international environmental law.
Leading conservation, trade and farming organisations have today (18 July 2022) taken legal action to challenge the UK Government’s failure to give the public a say on post-Brexit trade deals – despite the risks they pose to the environment – which they say is a breach of international environmental law.
The coalition, including WWF, Green Alliance, Greenpeace, Compassion in World Farming, Trade Justice Movement, Sustain, Soil Association and Tenant Farmers’ Association, has said that existing arrangements for public scrutiny of new trade deals are inadequate, putting the UK Government in breach of the Aarhus Convention – an international agreement that sets out an obligation to ensure public consultation on decisions by the government or public sector that will impact on the environment.
The group has now filed a formal complaint to the Aarhus Convention Compliance Committee which will consider whether the UK Government is in breach of international law.
If so, the committee has the power to make recommendations to ensure the UK public have a say in future negotiations. Ultimately, the UK Government could deliver this in many ways, for example by creating a Citizens’ Assembly to consider new trade deals.
The legal challenge comes as the UK Government seeks to push a new trade agreement with Australia through Parliament without guaranteeing any time for MPs to debate or vote on the deal.
Katie White, Executive Director of Advocacy and Campaigns at WWF, said:
“People don’t want the food on their plates to fuel the climate and nature crises. Yet behind closed doors the UK Government has cut trade deals with Australia, an environmental laggard, opening our shores to imports without adequate safeguards for climate and nature.
“It’s totally unacceptable that the public and Parliament have been denied a say on these trade agreements when their consequences will be felt for generations to come – full scrutiny is essential if we are to avoid a deal by default.
“To live up to the climate and nature promises in their manifesto, the new Prime Minister and their government must guarantee meaningful public consultation on all future trade deals and set core environmental standards for all food sold in the UK, to ensure the UK’s transition to sustainable farming isn’t undermined by imports driving nature loss overseas.”
The coalition has highlighted the fact that free trade agreements have a clear environmental impact. This is recognised in the UK government’s own environmental impact assessments of new deals, including with Australia, New Zealand, and Japan. The impact assessment for the UK-Australia deal states: “The agreement could impact on the environment through a variety of channels” and notes “there is evidence that agricultural activities (especially beef and dairy production) contribute to deforestation in Australia” [1]
Although the public was consulted on the objectives prior to the launch of trade negotiations [2], this was several years before final terms were agreed, with no opportunities for public consultation in the interim, and no guaranteed opportunity for debate or a vote in Parliament.
The organisations bringing forward the legal challenge will make the case that this amounts to a failure to comply with the Aarhus Convention, which requires opportunity for public participation “at an appropriate stage, and while options are still open”.
Ruth Bergan, Director of the Trade Justice Movement said:
“International trade agreements have far-reaching impacts on our livelihoods and the environment. Yet there is shockingly little transparency in these negotiations. The lack of public and parliamentary participation leads to agreements that don’t adequately consider their environmental impact and are detrimental to UK citizen’s interests, including tackling climate change.
“The trade deal with Australia will set a precedent for future deals with countries like India, the Gulf states and Brazil. That’s why it is so important that we get the process right this time. We need the government to set a trade strategy, and ensure parliament, civil society and the public are able to fully engage with each deal. The process for scrutiny of the UK-Australia deal has been a crucial test for the UK’s post-Brexit independent trade policy, and it has to date proven unfit for purpose.”
Dr Nick Palmer, Head of CIWF UK, says:
“Free trade agreements will have huge impacts on the UK’s environmental standards for decades to come. Yet the lack of scrutiny afforded by the UK Government of these deals, and the opportunity for the public to influence them, is appalling. This concern has been raised not just by civil society, but also by a number of select committee reports.
“The Government has failed to meet the Aarhus commitments. There has been insufficient public involvement when the Government should be welcoming input from a broad range of stakeholders. Additionally, the UK Government should introduce a set of core standards for animal welfare and the environment that must be met for products to be included within the terms of any trade agreement.”
Shaun Spiers, executive director at Green Alliance, said:
"The government has resisted proper scrutiny of its trade deals at almost every turn - from publishing impact assessments after agreements have been signed to trying to pass the Australia deal without even a debate in parliament.
"Ministers often talk about the UK leading by example. They have the chance to show leadership through much more open consultation on negotiating objectives and texts.”
Emily Armistead, Acting Programme Director for Greenpeace UK said:
There's very strong public support for protecting the UK's food, animal welfare and environmental standards, yet we know that free trade deals can undermine them. This is why it's absolutely vital that these deals are negotiated in an open and transparent way, giving the public a chance to have a say - rather than being secretly struck with a handshake behind closed doors. Whoever ends up as the next Conservative leader would do well to remember that votes risk being lost through rushing through trade deals that undermine hard-fought environmental and social protections, in order to satisfy shadowy figures behind the scenes. Ministers should therefore welcome a healthy dose of public scrutiny at every stage of trade deal negotiations to prevent this from happening."
Rob Percival, Head of Food Policy at the Soil Association, said:
“The UK Government appears to be in flagrant breach of international law. No public mandate has been given for hasty and ecologically damaging trade deals. No robust Parliamentary scrutiny has been allowed. We risk offshoring our environmental impact and exacerbating the climate and nature crises. It’s imperative that the Government responds to this legal challenge by committing to greater public engagement. Core standards for trade should also be developed, providing a level playing field that supports British farmers to embrace agroecology and nature-friendly production.”
Kath Dalmeny, CEO of Sustain said:
“The Government has failed to set a trade policy, failed to consult the public and failed to give Parliament enough time to consider the UK-Australia trade deal. Involving parliament and the public in the trade deal scrutiny process should be seen as a strength, not a weakness. Multiple sets of advisers and select committees have told the Government they should set core food, environment and animal welfare standards for imports, which we would urge them to do as quickly as possible.”
Notes:
- The Aarhus Convention dates from 1998 and is signed by 39 countries. It binds governments in international law to certain duties across three key pillars of access to information concerning the environment, public participation in environmental decision making and access to environmental justice.
- The Aarhus Convention provides for a complaints mechanism which members of the public and NGOs are able to use where a government is failing to take action in areas to which the Convention applies.
[1] Impact assessment of the Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and Australia, Department of International Trade, p.42, p.51
[2] With regard to post-Brexit trade deals, limited public consultation took place in 2018 (Australia / New Zealand) and 2019 (Japan)
- The Australia deal’s impact assessment recognises that Australia is behind the UK on aspects of the Environmental Performance Index. It finds that Australian agricultural activities, especially beef and dairy production, contribute to deforestation and land use change.
- Although no “new permissions” for imports have been created in deals signed with Australia, New Zealand and Japan, previously the import of key agricultural products was subject to tariffs and quotas which significantly restricted the quantity of imports. Key sensitive agricultural sectors with significant environmental impacts, such as beef and lamb, will now see complete reduction of tariffs within 10 years of the Australia deal being ratified, increasing their competitiveness and likely presence on the UK market.
- The complaint itself highlights that “little substantive change or improvement to the arrangements for public participation has been put in place in the last 3 years, despite the UK embarking on a series of trade negotiations (and concluding various agreements) following its exit from the EU”.
Extent of the breach:
- Time-frames for effective public participation are not available so as to ensure that these are ‘sufficient for effective participation’ (there is limited public consultation and time-frames are not fixed);
- The draft rules are not published other than in the form of the negotiating objectives and there is currently no practice of publishing negotiating texts in the UK (in contrast, for example, to EU practice);
- There appears to be no opportunity for the public to comment directly (or through representative consultative bodies) on drafts or on final texts;
- The Government has not committed to taking into account the result of the (extremely limited) public participation as far as possible throughout the negotiation process.
Suggested ways to ensure robust public scrutiny:
- Publish a trade policy setting out the Government’s overall approach to trade, and open this for consultation, potentially including a Citizens’ Assembly.
- Make provision for public consultation on the negotiating objectives of individual deals, accompanied by a robust scoping assessment;
- To make explicit provision for the public to be able to influence the negotiations as they progress, e.g. through a Citizens Advisory Group, a representative consultative body which would be involved in the negotiating process and review the final agreement;
- To publish negotiating texts on a regular basis and invite comments from the public on those texts and, for confidential documents, to establish a procedure which would allow MPs and selected members of advisory groups to read these texts in a secure environment;
- In terms of Parliamentary scrutiny, currently no time has been given in the Parliamentary calendar through to recess to debate the deal under CRAG and – even were a debate to take place – MPs would not be guaranteed a vote on the trade agreement.
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Image: London, United Kingdom. The Prime Minister Boris Johnson, greets Scott Morrison in front of Number 10 Downing Street. Picture by Tim Hammond / No 10 Downing Street (CC BY-NC-ND 2.0)
