Why operating under WTO rules is not simple

The nature of WTO negotiations is changing, argued Professor Fiona Smith in her inaugural lecture at Leeds Law School last night. The agricultural trade specialist said that diplomatic negotiations were replacing regulation, although it was a messy process, but one that would mean a less central role for lawyers and technocrats. Diplomacy and regulation were in tension in some ways. That tension could be creative, but it could also be destructive.

Without regulation, the strongest and richest could get the best deal. The WTO had been far from ideal for least developed and developing countries, but what had gone before had been worse. For agriculture trade would effectively cease under a hard 'no deal' Brexit.

Professor Smith reminded us of the complexity of WTO rules, 30,000 pages of them and a 500 page handbook. Brexit was not something that WTO rules had been designed for, a country leaving a regional trade arrangement. There was more to trade than goods and services. The trade regime covered subsidies, quality agreements and the environment.

The question of whether the UK was a WTO member had in a sense been resolved, but its schedule of commitments had been absorbed in those of the European Community in 1973. The UK did not have the benefit of an accession treaty, She noted that the UK did now have its own representative in Geneva who was actively attending meetings, although what the UK's stance would be on various issues was unclear.

It was evident from her remarks that following WTO rules was not the simple matter that it was claimed to be. One might add that this is why countries around the world enhance them with regional trade agreements, not least the super regionals like the EU. WTO rules do not accommodate someone leaving a regional trade agreement.

Lack of trade negotiators hits home

During the referendum campaign I made the point a number of times that the UK had no experienced trade negotiators which we would need after a Brexit to negotiate with the EU and with third countries. As Ken Clarke noted in a Sky interview when he was up against Nadine Dorries, trade negotiations are not a doddle. They are complex and demanding and require a special skill set. The legal context is baffling and I am pleased that we have two trade law experts on our Yorkshire Agricultural Society working party.

At one point I even thought that I had got The Times 'Red Box' interested, but it all came to nothing.

The only trade negotiators we have at the moment are working for the EU and they may be able to line up other, more lucrative jobs in Brussels where they are probably settled with their families with children attending an international school. The civil services does claim there are 10 or 12 officials 'with direct knowledge on trade negotiations', but that could mean attending as observers or summarising the outcome. Canada, which recently negotiated an as yet unratified agreement with the EU, has 830.

The head of the civil service, Sir Jeremy Heywood, has already spoken to professional services firms (among them Linklaters and McKinsey) but they and law firms are likely to charge an arm and a leg. Nevertheless, the aim is to have 300 experts by the end of the year when Article 50 is likely to be triggered.

Nigel Farage has come up with a unique solution: 'Let's get them from Singapore or South Korea or Chile or Switzerland or any of these countries who've managed to achieve far more in terms of global trade deals than we have', departing from his usual line on immigration.

Poor old Ken, by the way, not only did he have to try and have a serious debate with Nadine Dorries, at a meeting in Skipton where I was the warm up act, an elderly gentleman stormed out shouting 'Traitor' when Ken started to speak. He didn't bat an eyelid and gave his usual polished performance.

Agricultural policy outside the EU

Whether or not the UK will leave the European Union remains to be seen, but it is a sufficiently serious prospect for it to be worth thinking about its implications for agricultural policy.

What one would probably have is a continuation of a version of the CAP at the national level. One of the constraints here is that the UK would still be a member of the World Trade Organisation and any agricultural subsidies it provided would have to be compatible with WTO rules. Indeed, it could be argued that recent changes to the CAP have been driven too much by the need to provide subsidies in a form that can demonstrate that they are compatible with the 'green box'/non-trade-distorting requirements of the WTO. Hence, the policy instruments may have been influenced too much by that requirement.

Within the discussion of the 'balance of competences' review of the CAP, one issue is how much 'renationalisation' there has been of the CAP. Certainly, there has been quite a considerable amount of recoupling which gives quite a lot of discretion to member states or their regional governments, but the basic principles of the CAP remain intact.

In any case, some would argue that the term 'renationalisation' is an inappropriate or old fashioned one. What has happened rather is the maintenance of a common policy design with national flexibility in policy implementation. Some argue that as the goals of the CAP have become more complicated, and in particular taken on a greater public goods/environmental emphasis, there has been a recasting of the form of the CAP (although it is possible to exaggerate the extent of this). What this requires is policy instruments that allow diversity of implementation in member states (but not to an extent that would satisfy Eurosceptics). It is, however, worth bearing in mind that a lot of policies affecting agriculture are nationally determined, particularly taxation and inheritance law and planning regulations.

It may be that the CAP can be characterised as a means of tackling the market failures associated with land management (but arguably a rather inefficient means of doing so). However, for some member states the occupation of land could be a key objective to prevent rural depopulation and secure the ecosystem benefits of farmed land.

One also comes up against the problem of a low level of competence in effective policy design and delivery. That is not a problem confined to the CAP, but is a general challenge for the EU and for member state governments, but it is particularly evident in relation to the CAP.