ACTA: time for a democracy catch up?
The Anti-Counterfeiting Trade Agreement is an international trade treaty, drawn up over the past five years, that aims to improve ‘global standards for the enforcement of IPR, to more effectively combat trade in counterfeit and pirated goods.’ Having been negotiated in international fora, the treaty now requires national Parliaments and negotiating parties (including the EU as a whole) to sign and ratify it. This is what’s going on now.
ACTA raises a number of extremely controversial issues, all of them outlined very well in this booklet from Access, EDRi and the Trans-Atlantic Consumer Dialogue. Concerns include a further drift towards private companies being forced to police the Internet and the further pressuring of ISPs to carry out surveillance of their users.
One of the most troubling aspects, which is the focus of this post, is procedural – the persistent opacity that has surrounded the negotiation, and now ratification, of the treaty. It has seemed at every stage as if the process has a momentum and direction beyond the reach of the people it will affect. It has been formulated in closed international fora, with transparency an afterthought. Civil society groups have been consistently frustrated when seeking a mechanism to clearly put forward their objections in a meaningful and constructive way.
Now ACTA has been sent to the various parties to be ratified. And this should be the stage at which democracy really kicks in – even where it was absent before – with public scrutiny, and a public voice in decisions that affect us, including those regarding the ratification of treaties that bind domestic policy makers by international rules.
I have patched together some of the story of ACTA scrutiny in the UK. Warning: it is, to borrow a phrase from Alan Partridge, a long, drawn out affair. A couple of weeks ago, Julian Huppert MP asked the Minister in Parliament what the process of scrutiny for ACTA looked like in the UK. Here are the Minister’s answers, first on the timetable for signing and secondly on what the scrutiny processlooks like. Here’s the low-down on what has happened:
1. Scrutiny in the UK comes in the form of ACTA going before two EU Committees – one in the House of Commons, and one in the Lords.
2. ACTA passed scrutiny of the Commons EU Committee on 14th July this year. The scrutiny report classifies it as ‘document not raising legal or political questions requiring a report to the House’.
3. ACTA passes scrutiny of the Lords EU Committee report on 14th October. The report references ‘Government doubts about the legal basis’ (pdf). I asked the Lords committee about these doubts. They replied with the letters that are copied below. I aim to one day understand exactly what they mean. Help with that is appreciated.
4. The Government said it is now ‘considering its position’.
I also asked for the basis upon which the Commons Committee scrutinised ACTA, and they sent an Explanatory Memorandum provided by BIS, which you can download here. It paints a reasonably rosy picture.
In stitching this convoluted story together, one gets a further feeling that the treaty process is independent from any meaningful form of proper and open democratic scrutiny. (I should point out, to be fair to the clerks of the Committees, both were very responsive and helpful in providing information).
Your chance to say ‘I don’t like this’ has been minimised throughout ACTA’s development. Calls for scrutiny, transparency and accountability regarding ACTA are rising across the EU. You can follow these on the ‘Act on ACTA’ site.
Now is the time for the EU and its constituent nations to play democracy catch up and offer its citizens a chance to have their say – meaningfully – on this important and far reaching treaty. We will be chasing the Government on what it means to say that they are ‘considering their position’ – the IPEX site says that ACTA has already cleared scrutiny in the UK. Are there still opportunities for people in the UK to have their say? We have asked for a meeting with Baroness Wilcox, Minister for Intellectual Property, where we shall try to get some more clarity and set out our concerns.
Letters regarding the Lords EU Committee scrutiny of ACTA:
15 September letter (Lord Roper to Baroness Wilcox):
Docs 12190/11 & 12193/11 (COM (2011) 379 & 380): Proposals for Decisions on the signing and conclusion on behalf of the European Union of the Anti-counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America
Thank you for your Explanatory Memorandum of 14 July. This was considered by the Justice and Institutions Sub-Committee at its meeting of 14 September. We decided to hold these proposals under scrutiny.
We note that the Agreement does not make any provision for the EU to lodge a declaration of competence. We regard a declaration as valuable in providing legal certainty.
We should be grateful for further information detailing the nature of your doubts concerning the legal basis.
We should be grateful for a reply to this letter within the usual 10 day period.
I am copying this letter to Mr William Cash MP, Chair of the Commons European Scrutiny Committee; and to Alistair Doherty, Clerk to the Commons Committee; Paul Hardy, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); and Elaine Barley, Departmental Scrutiny Co-ordinator.
The Rt Hon the Lord Roper
Chairman of the Select Committee on the European Union
5 October letter (Baroness Wilcox to Lord Roper):
Docs 12190/11 & 12193/11 (COM(2011) 379 & 380): Proposals for Decisions on the signing and conclusion on behalf of the European Union of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America
I am writing in response to your letter of 15 September, in which you requested further information on the legal basis of the Anti-Counterfeiting Trade Agreement (ACTA).
At the time of my original letter to you, we were considering whether Article 114 of the Treaty on the Functioning of the European Union (TFEU) needed to be cited in addition to Article 207 TFEU. We are now satisfied that in so far as Article 114 TFEU may be considered relevant, it is no more than ancillary to Article 207 TFEU in relation to the ACTA agreement.
I was pleased to note that the Explanatory Memoranda attached to the European Commission’s proposals made a statement about the division of competence between the EU and the Member States in the field of criminal enforcement, following the clear preferences of the Member States including the UK. In particular, the Commission has not proposed exercising shared competence in the field of criminal sanctions, which I very much welcome. The House of Lords Select Committee on the European Union has requested an EU declaration of competence in addition. My officials will discuss this issue with the European Commission.
The Presidency is keen to secure agreement on the Council decision for EU signature shortly, to allow signature with other international partners. I would therefore be grateful if the Committee would consider clearing these documents from scrutiny.
I am copying this letter to William Cash MP, Chair of the Commons European Scrutiny Committee; the clerks of both Committees; to Les Saunders, Cabinet Office European & Global Issues Secretariat; and Elaine Barley, Departmental Scrutiny Coordinator, BIS.
BARONESS WILCOX
14 October letter (Lord Roper to Baroness Wilcox):
Doc 12190/11 & 12193/11 (COM (2011) 379 & 380): Proposals for Decisions on the signing and conclusion on behalf of the European Union of the Anti-counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America
Thank you for your letter of 5 October. This was considered by the Justice and Institutions Sub-Committee at its meeting of 12 October. We decided to clear these proposals from scrutiny.
In doing so we agree with you that the common commercial policy provides an adequate legal basis for these proposals.
We are pleased that you will pursue our suggestion of a declaration of competence. Ideally this should be incorporated into the Agreement to provide maximum legal certainty and transparency.
We should be grateful for an update on the outcome of your discussions with the Commission in due course.
I am copying this letter to Mr William Cash MP, Chair of the Commons European Scrutiny Committee; and to Alistair Doherty, Clerk to the Commons Committee; Paul Hardy, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); and Elaine Barley, Departmental Scrutiny Co-ordinator.
The Rt Hon the Lord Roper
Chairman of the Select Committee on the European Union