America has published a Summary of Specific Negotiating Objectives, which has been available since last year. There is good news and bad news in this. Let's take a closer look at it.
Transparency
The word "Transparency" occurs 19 times in the document, which appears to indicate that they have learned from the resistance to TTIP and CETA. The paper urges the UK to:
- Promptly publish laws, regulations, administrative rulings of general application, and other procedures that affect trade and investment;
- Provide meaningful opportunities for public comment on measures before they are adopted and finalized; and
- Establish and maintain mechanisms for review and, if warranted, correction of final administrative actions.
This is encouraging, and a substantial pivot from the secretive backroom deals we've become accustomed to. It seems they want the public to get involved and to have a say in what is going on. I really can't argue with it; I just want to see what this looks like in practice; I haven't forgotten that when TTIP was being negotiated, our representatives had to read the text in a guarded room and weren't allowed to take notes or make a copy of it.
Intellectual Property
This is the one I worry about. There's a lot to worry about here for workers on both sides of the Pond. The paper demands that the UK:
- Provide strong protection and enforcement for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade, including, but not limited to, technological protection measures;
- Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rights holders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;
- Prevent or eliminate government involvement in the violation of intellectual property rights, including cyber theft and piracy;
- Secure fair, equitable, and nondiscriminatory market access opportunities for U.S. persons that rely upon intellectual property protection;
- Prevent or eliminate discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;
I've highlighted the most problematic passages here; it's worth going over the document itself with a fine tooth comb. I really can't believe the cheek of these people! They want to control the internet itself in order to prevent infringement, the issue that got ACTA thrown under the bus in 2012. The funniest part is the first point, where they want strong protection and enforcement for new methods of transmitting and distributing products under copyright in a manner that facilitates legitimate digital trade. Well I don't know if you've noticed this but you can't have it both ways; algorithms can't spot fair use, people.
The most ridiculous one is where they want rightsholders to have the legal and technological means to control the use of their works over the internet (and other global communications media) and to prevent unauthorised use thereof. This would mean increased mass surveillance — the only way to control and prevent anything being done over the internet. Kiss your privacy goodbye and expect a lot of false positives.
The item that should concern our American cousins is the one about securing market access opportunities for US persons who rely on IPR protection. This is basically about outsourcing American jobs. They have every right to be concerned. In any case, if your business model relies on IP protection, you're in the wrong trade. IPR rent-seeking is a brake on innovation in tech, in culture, and a range of other industries. The absolute last thing I want to see over here is an increase in litigation over IPR.
The NHS
Although the Government says the NHS is not on the table, I find that hard to believe since they've been hiving off a lot of its services to private corporations. Richard Branson famously sued the NHS over not having a contract renewed. One of the passages in the US position paper I find troubling with regard to the NHS is:
Ensure that SOEs accord non-discriminatory treatment with respect to the purchase and sale of goods and services.
The NHS is, by definition, a state-owned enterprise. However, Foundation Trusts are fairly autonomous and therefore not fully owned and controlled by the state. This is how the fly gets into the ointment. Could US companies sue the UK because a Trust or Foundation Trust didn't purchase goods and services from them?
The Government is practiced at splitting hairs; the NHS is not a discrete entity, it's a patchwork of Trusts and Foundation Trusts, some of which are contracted to private enterprises. The NHS might have some wiggle room here:
- Maintain broad exceptions for government procurement regarding:
- National security;
- Measures necessary to protect public morals, order, or safety;
- Protecting human, animal, or plant life or health; and
- Protecting intellectual property.
-Maintain ability to provide for labor, environmental, and other criteria to be included in contracting requirements.
Procurement
This is the area where the NHS is most likely to be affected. Since private companies already have the ability to tender to run NHS Trusts, American companies will demand an opportunity to have a chance to tender for contracts.
Labour
The position paper has generous provisions for enforcing health and safety, for recognising the right of unions to engage in collective bargaining, and for dealing with modern slavery. There is, however, a problematic passage:
- Elimination of all forms of forced or compulsoy labor.
Really? In a country where prisoners are forced to work for pennies on the dollar for big business, I'd like to see how the US is going to deal with that on its side. This is not a "You first" argument; the United States has an unfair advantage by using its Constitutionally-approved slaves to provide goods and services and I can't see them giving that up just to trade with the UK.
I can see this passage coming back to bite them:
- Require the UK to take initiatives to prohibit the importation of goods produced by forced labor, regardless of the source country.
Oh, to be a fly on the wall when the UK flings the United States' record on forced labour back in its face. That is one reason I'm glad the public gets to have a say in the matter. I'll be sure to bring that up when the opportunity presents itself.
Environment
The United States is notorious for its cavalier approach to protecting the environment. Though the paper talks a good game there are some red flag passages that bear scrutiny:
-Establish strong and enforceable environment obligations that are subject to the same dispute settlement mechanism that applies to other enforceable obligations of the Agreement.
-Establish rules that will ensure that the UK does not waive or derogate from the protections afforded in environmental laws for the purpose of encouraging trade or investment.
-Establish rules that will ensure that the UK does not fail to effectively enforce environmental laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the Parties.
America has a habit of trampling on environmental consideration for profit, and I can see echoes of this here.
Dispute Resolution
This is where we usually run into trouble. The paper has an interesting passage worth paying attention to:
-Encourage the early identification and settlement of disputes through consultation and other mechanisms.
-Establish a dispute settlement mechanism that is effective and timely, and in which panel determinations are based on the provisions of the Agreement and the submissions of the Parties and are provided in a reasoned manner.
-Establish a dispute settlement process that is transparent by:
-Have provisions that encourage compliance with the obligations of the Agreement.
- Requiring that Parties’ submissions be made publicly available;
- Requiring that hearings be open to the public;
- Requiring that final determinations by a panel be made publicly available; and
- Ensuring that non-governmental entities have the right to request making written submissions to a panel.
-Provide mechanisms for ensuring that the Parties retain control of disputes and can address situations when a panel has clearly erred in its assessment of the facts or the obligations that apply.
Those ISDS courts we tend to worry about are still in operation here, it seems, but the public gets to have a say. I find that very encouraging in principle but would very much like to see what that looks like in practice.
Foreign policy
As NGO Trade Justice Movement pointed out, America likes to use trade to strongarm other countries into getting on board with its foreign policy objectives. Case in point: its passage on BDS (Boycott, Divestment, Sanctions) with regard to Israel:
- With respect to commercial partnerships:
- Discourage actions that directly or indirectly prejudice or otherwise discourage commercial activity solely between the United States and Israel;
- Discourage politically motivated actions to boycott, divest from, and sanction Israel;
- Seek the elimination of politically motivated nontariff barriers on Israeli goods, services,or other commerce imposed on Israel; and
- Seek the elimination of state-sponsored unsanctioned foreign boycotts of Israel, or compliance with the Arab League Boycott of Israel.
This is massively problematic, and a violation of the United States First Amendment. I don't approve of the abuse of Palestinians by Israel, and the BDS movement only wants to get Israel to play nice, not vanish from the map. I can't and won't accept this. The question is, will the UK knuckle under to get a deal done with the Trump administration?
What can we do?
A group of NGOs has got together with the Trade Justice Movement and the Citizens Trade Campaign and sent an open letter to the UK Secretary for International Trade, Liz Truss, spelling out its concerns. If you want to get involved, you can join the Citizens Trade Campaign's latest drive to contact your representatives and ask them to prioritise people and the planet over profit.
I know it seems to be largely a waste of time since our representatives either aren't particularly interested in trade policy or are so mired in ideological considerations that they won't listen to any objections. This is one of the paragraphs of an automated message I received from Rebecca Long-Bailey, my MP.
If you are contacting me in relation to general policy matters rather than requesting direct assistance, please note that various campaign organisations regularly seek to rally their members on a variety of issues and as a result I receive a huge volume of emails on a range of policy issues each day.
If you would like a direct response to your policy related email I would be grateful if you could indicate this and where possible I will respond to you within six weeks. Otherwise, please check my website www.rebeccalongbailey.com as I will endeavour to regularly provide my thoughts on various policy issues.
Other MPs will respond in a similar fashion; everybody and their dog calls and emails them on a range of issues and they can't tackle them all. Personally, I like to find out what their leanings are and tailor my communications to them. Ms. Long-Bailey likes to flash her Green credentials and is a proud Socialist so I can see her getting behind this initiative. I'm just asking her to take a look at this and to ensure that she is asking the Trade Secretary to ensure that the negotiations don't shut the public out and that our interests are put first. With a flagging economy and pressure on the Government to Do Something, I can see the public interest being thrown under the bus to get a deal done. I asked my MP to ask Liz Truss to ensure that this doesn't happen. You can, too.
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