On Tuesday this week, the European Commission revealed the overwhelming level of public discontent concerning the proposed Transatlantic Trade and Investment Partnership (TTIP). The consultation was launched in early 2014 in response to growing public concern. The Commission received 149,399 responses; no less than 97% of these rejected investor protections or the deal as a whole.
Taking public opinion seriously?
Launching the consultation, Karel De Gucht, former European Commissioner for Trade, said that he wanted people to "have their say". In fact, it is questionable whether the public consultation was ever intended for citizens: it included 13 complex questions, assumed technical knowledge and did not ask respondents whether or not they felt ISDS should be included. As a result, a group of NGOS including Friends of the Earth Europe, SumOfUs and 38 Degrees, created an online tool so that citizens could engage. Faced with the overwhelming response, De Gucht's goodwill evaporated and he characterised it as an "outright attack".
There is serious concern amongst civil society organisations that the majority of submissions will be ignored by the Commission. The published consultation report is vague about how it weights submissions. However there is a clear suggestion the Commission will 'take note of' submissions facilitated by an online platform, but will 'focus on' those that 'provide more specific views'.
There is particular concern regarding the UK government reaction. Over a third of the submissions (34.8%) were from the UK, the largest of any Member State. Yet even before the EC had completed its analysis, Lord Ian Livingston, Minister for Trade, wrote to the Commission stressing that ISDS must be part of the deal, ignoring the views of UK citizens and contradicting the negotiating mandate which says that it will only be included if it is clearly in the EU's interests.
If the Commission and the UK ignore the vast majority of views, it will send a clear message that the right to private profit-making overrides the concerns of citizens.
Good reason to say no
Under the proposed Investor to State Dispute Settlement (ISDS) system, companies would be able to sue governments for millions and sometimes billions of pounds. The Commission has attempted to play down opposition to ISDS, claiming that opponents have not fully understood the issue. Yet the evidence is clear: investment protection measures have a huge impact on government right to regulate and on citizens. States are being challenged on every continent for decisions relating to everything from environmental regulation, to the provision of services and tax policy. Cases cost US$8 million on average to defend, irrespective of whether countries win. There is no limit on the level of the award: Russia was recently ordered to pay damages of US$50 billion to Yukos oil company whilst Ecuador was ordered to pay US$2 billion to Occidental petroleum.
The UK has consistently claimed that it is immune from challenge, yet recent research from Friends of the Earth Europe has shown that there are 127 known cases against EU member states, transferring billions of Euros from states to corporations.
Democratic scrutiny
Whilst the EC claims that the consultation was intended to strengthen the provision and wording of the investor protection clause, there is no opportunity for democratic oversight of this: neither MEPs nor MPs will have input, limited instead to voting for or against the deal as a whole.
On Thursday, UK MPs debated a motion on TTIP in parliament calling for the TTIP and ISDS to be subject to parliamentary scrutiny. This is an important first step, however, there is much work to do to ensure genuine democratic scrutiny is possible in the UK. When the UK-Colombia Bilateral Investment Treaty was placed before the UK houses of parliament for scrutiny, it became apparent that there was very little that parliamentarians could actually do to influence the process: it was almost impossible to secure a debate and the kind of debate that was permitted, as well as the timing, was tightly controlled by whips.
EU citizens have made very clear their position on ISDS as well as their concern about TTIP. It would be an outrage for the EC or the UK to simply ignore these views. It is also critical that genuine democratic scrutiny and participation is possible in the development of any trade deal.
READ TJM's submission to the public consultation here.