Sam Fowles, Doctoral Candidate in Law at Queen Mary, University of London and recipient of the Mishcon de Reya Academy Grant for 2014/15 today publishes his work 'The Subtle Revolution: TTIP, CETA and the Sovereignty of Parliament'.
Sam's research, funded by Mishcon de Reya so as to further the agenda of its Academy theme 'Challenges to the Rule of Law', explores the threat to the sovereignty of the UK posed by The Transatlantic Trade and Investment Partnership (TTIP) and the Comprehensive Economic and Trade Agreement (CETA). TTIP and CETA are trade and investment treaties between (respectively) the EU and the USA and the EU and Canada. Both aim to substantially reduce barriers to trade including “non-tariff barriers” (regulations). The UK will be a party to both treaties as a result of its membership of the EU.
The research findings and conclusions of this work are summarised below, along with a link to the report in full.
Anthony Julius, Deputy Chairman of Mishcon de Reya and Director of The Academy, commented: "Our Academy research agenda this year is designed to consider the 'hard cases', the challenges to the rule of law in the rule of law/post-rule of law era, and how our polity might deal with such challenges while retaining its respect for the rule of law. I would like to thank Sam for his valuable addition to our Academy thinking."
Sam Fowles added: "The impact of globalisation on the UK's democratic constitution, particularly in the light of TTIP and CETA, is an incredibly important issue for all those interested in the law, politics, economics or simply making their vote count in May. I'm incredibly grateful to Mishcon for giving me the resources and the freedom to bring this project to fruition."
Key research findings include:
- The UK is a signatory to many treaties restrain Parliament and the government’s freedom of action, so in this way TTIP and CETA are unexceptional. Nevertheless it is important to note that, unlike rules that regulate commerce between private parties, TTIP and CETA impose restrictions that impact on public policy and public law.
- The ratification of TTIP or CETA would not trouble the international law understanding of sovereignty, but in domestic law Parliamentary sovereignty is fundamentally tied to democracy.
- If parliament was to ratify TTIP of CETA it would effectively be binding future parliaments for a period of at least 20 years as a result of a "stabilisation clause" relating to investment protection and compensation.
- TTIP and CETA would have a negative impact in terms of the rule of law because they would put arbitrators in the place of judges.
The research concludes:
- We must re-evaluate our understanding of continuing sovereignty. If parliament can bind itself in relation to TTIP and CETA then it must be able to bind itself in relation to other issues.
- A ratification of TTIP or CETA would be susceptible to judicial review on the grounds that Parliament has gone beyond the scope of its powers.
- The UK must derogate from the stabilisation clause before it ratifies TTIP or CETA. This is the preferable option from a purely legal standpoint.
You can access the Report, The Subtle Revolution: TTIP, CETA and the Sovereignty of Parliament, here.