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If the Queen Loved Her Subjects – TTIP and the Royal Prerogative

May 16, 2015

I am one of those who greatly fear the Transatlantic Trade and Investment Partnership (TTIP). If passed it would represent a massive surrender of sovereignty to transnational corporations. To my mind the worst single aspect of TTIP is ISDS (Investor State Dispute Settlement), as Canada is now realising to its cost since ISDS was incorporated in NAFTA. How on earth can the judgement (which is not subject to appeal) of cabals of corporate lawyers sitting in secret be deemed fairer than the legal processes of the USA, the UK and European nations? The trouble is of course that developed nations have imposed ISDS on scores of ‘lesser’ nations. The last time I enquired, the UK was party to 94 bilateral agreements incorporating ISDS.

Our fears are of course stoked by the unprecedented level of secrecy around the negotiations. What leaks there have been have indicated that assurances about the NHS environmental protection etc. are entirely bogus. If when the negotiators had agreed a final text, it would be exposed to adequate public and legislative scrutiny before any nation ratifies the agreement it would be one thing; I guess a nation is entitled to freely and knowingly surrender irreversibly to corporate domination if it wishes. This is very far from the case of course.

The USA, which has traditionally been very protective of its sovereignty and its citizens, nevertheless in 1974 passed the Trade Act which established the fast track negotiating authority for trade agreements which is the authority of the President of the United States to negotiate international agreements that Congress can approve or disapprove but cannot amend or filibuster. Also called trade promotion authority (TPA) since 2002, fast track negotiating authority is a temporary and controversial power granted to the President by Congress. The authority was in effect from 1975 to 1994, pursuant to the Trade Act of 1974, and from 2002 to 2007 by the Trade Act of 2002. Although it expired for new agreements on July 1, 2007, it continued to apply to agreements already under negotiation until they were eventually passed into law in 2011. In 2012, the Obama administration began seeking renewal of the authority. Fortunately it has recently failed to secure the necessary 60% senate majority, but obviously this only gives us a short breathing space. It is understandable that if Congress were allowed to amend the agreement, the whole negotiating process would have to go back to square one; no trade deal would ever be concluded. However under fast tracking Congress has just 90 days to scrutinise, debate and agree an agreement it knows hardly anything about beforehand. Given the processes involved it is clearly impossible for Congress can scrutinise the agreement adequately. They have to trust the administration.

If the US arrangements are unsatisfactory, those in Britain are appalling; treaties are ratified by authority of an Order in Council. The Queen is asked to approve and by convention always agrees. There is the Ponsonby Rule by which the treaty text is laid before Parliament 21 sitting days before ratification. The only consequence of this that has ever arisen is that there may be an adjournment debate (in which MPs do not vote on the subject under discussion). The last instance of this that I am aware of is when the Marrakesh Agreement was ratified in 1994. Amongst other things this established the World Trade Organisation and the General Agreement on Trade in Services (GATS). The Hansard record shows that the MPs participating in the debate did not have the faintest understanding of the issues involved. Just one consequence of GATS is the creeping privatisation of the NHS, something which subsequent governments have worked hard to conceal.

The use of the Royal Prerogative to ratify treaties may have made some sense in the 19th century in the days of Empire and gunboat diplomacy, but democracy aside the boot is now on the other foot. If Cameron, who can decide on a whim to accept or not accept a negotiating position, is facing Merkel or Obama both of whom have to satisfy their legislatures, who has the stronger negotiating position – surely not Cameron?

The authority of the monarch has become eroded over centuries, not by Act of Parliament, not by popular referendum, and not by any formal contract, only by convention. But conventions can change; new precedents can be created. It would be inconceivable for the Queen to refuse to ratify a particular treaty, but would it not be possible to say of TTIP for example, “This is such an important decision that I will not give you an answer until my parliament has delivered its verdict.” ?

It would of course be very unwise of her to spring this on the Privy Council at the point at which a decision is sought; she would have to announce her intention in advance. The Government would of course do all it could to head her off, but I am sure the Palace with care could forestall these attempts.

The biggest hold the establishment has over the Royal Family is finance, whether it be the size of the civil list or taxation; but it ought not to be a stranglehold. The Royal Family could well afford to economise drastically without hardship. In any case the establishment has an interest in retaining our ostentatious style of monarchy to distract attention from the reality of elective dictatorship. If the Queen really cared enough about the interests of her subjects, as I believe she did at the time of her coronation, she would not allow herself to be blackmailed by financial considerations.

Regrettably I believe she is most unlikely to take this course of action. She is too much conditioned by her upbringing and dependent on the advice of her no doubt highly conservative advisers. However if this could be sufficiently publicised, many more people could be alerted to the dangers of TTIP and the government, whose mandate depends on 36.9% of the vote (about 25% of those entitled to vote) might just listen.

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From → Democracy, Trade law

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