It is nevertheless shocking to see even self-described Thatcherites denounce free trade and ally themselves with everything that the Lady stood against. Iain Dale is the latest exemplar of this peculiar variety of “reconstructed” free-marketeers. In his column for Conservative Home, Dale castigates the Transatlantic Trade and Investment Partnership (TTIP), the deal currently being negotiated by the U.S. and the EU.
The problem with Dale’s column is not its critical stance per se. There are reasons to criticise TTIP from a free-market perspective: it is complex, bureaucratic and hard to navigate for all but the most seasoned of trade officials and lobbyists; it probably will not further expand trade opportunities in sensitive areas such as financial services, agriculture and healthcare; moreover, the sheer scale of each side’s economy, and the many interest groups at stake, mean that progress so far has been much slower than if individual countries – perhaps even a post-Brexit Britain – had negotiated transatlantic treaties on their own. Ideally, free-trade agreements should be short and remove barriers – they should not be an excuse to write rules. TTIP is nonetheless expected to deliver short-term economic benefits, and over the long term it will dynamically expand opportunities for exchange which are not captured by the models.
But that is not Dale’s line. His claims about TTIP and its consequences for the UK are preposterous and untrue. They could have been lifted from a Friends of the Earth pamphlet. Indeed, the article appears to have been prompted by a Greenpeace leak of some negotiating documents earlier in the week. If you didn’t know about the leak it’s probably because none of the revelations showed the evil intent and deviousness which anti-trade campaigners might have hoped for. The media quickly moved on.
Dale argues that TTIP’s investment protection clause, better known as ISDS, will allow companies to sue governments if the latter’s policies lead to a loss of profits. He says the deal will bring about the privatisation of the NHS. Dale also claims that TTIP will open up EU markets to GM foods.
This is pure fiction. ISDS (Investor-State Dispute Settlement) mechanisms are a standard feature of modern bilateral investment treaties. The UK currently is a signatory to 110 such pacts, with countries as diverse as China, Mexico, Poland and Singapore. ISDS seeks to reassure foreign investors in both – important to emphasise: both – signatories to the deal. It does so by agreeing an international arbitration tribunal which will referee disputes between states and foreign investors.
Let’s use a real-world example, rather than absurd hypotheticals. Following the Fukushima disaster, the German parliament in 2011 made the sovereign decision to phase out nuclear energy by 2022. Nuclear plants are expensive and they take time to build, which means that certainty and the ability to plan far ahead in the future are central to investment in the sector. In the German case, Swedish energy firm Vattenfall, which operated two plants in Germany, filed a request for arbitration soon afterwards to demand compensation. The German decision, which was sudden and unexpected because it had been prompted by a sudden and unexpected natural disaster, was a significant disruption to its business plans in Germany, so Vattenfall thought there were grounds for monetary compensation.
Note that the outcome of the dispute is uncertain – the arbitration is ongoing and it is by no means a given that Vattenfall will win. Indeed, out of 442 disputes concluded to date, 36 per cent ruled in favour of the state concerned, with another 25 per cent settled and 10 per cent discontinued. Only a quarter of rulings have been in favour of investors as far back as we have records.
But let’s assume that Vattenfall did win: what would happen then? The arbitration court would establish a compensation amount. There is no reason to believe this would be an inflated number because the arbitrators are appointed jointly by the two parties to the dispute. Germany would be liable to pay this amount, but its nuclear energy legislation would stand. Germany is a sovereign country and there is no way in which ISDS could change its policy decisions. Absolutely no way.
So what does this mean for ISDS in TTIP? It means that corporations will not be able to sue governments – let alone win arbitrated disputes – simply on the grounds of lost profits. It means the NHS will remain a bastion of central planning so long as the British people wish it to remain so, and that U.S. companies will have exactly zero influence on the outcome. More broadly, it means that TTIP has no impact on the democratic sovereignty of either side – if irrational politicians and uninformed voters are keen to continue to ban GMOs, they can do so with impunity. There is nothing the Americans can do beyond trying to persuade us otherwise.
One would like to think that Iain Dale was just misled about the likely effects of the EU-U.S. trade deal. At the same time, one cannot help but wonder whether this is a deliberate attempt by Eurosceptics to undermine the free-market case for Remain. That is a shame: I thought the whole point of the free-market case for Brexit was to make the UK better able to trade with third countries. Not to undermine the single most successful development in recent memory – globalisation – which has lifted hundreds of millions of people out of poverty. Even worse, perhaps it is virtue signalling. In order to try to “detoxify” the right in the eyes of many of the voters the Conservatives have lost, there seems to be a desire amongst Conservatives to adopt left-wing causes, no matter what damage they create to the economy and to society. The Conservatives should not go the way of Donald Trump.
But, as far as the EU debate is concerned, what is the point of getting Out if it means that we have to give up everything we believe in? The Lady wouldn’t have been impressed.