Campaign group Global Justice Now has mounted a legal challenge to force the UK government to release details of trade talks with more than a dozen countries.
During the final stage of the hearing last week, Government lawyers admitted that further trade talks are underway with unnamed countries, which the public is not even allowed to know are happening.
The sensational revelation came on day four of the case Montague v the Information Commissioner at the First-tier Tribunal in London.
Two years ago campaigners Global Justice Now asked for details including agenda, minutes and senior attendees at trade talks underway between Britain and more than a dozen countries including the USA, Gulf States and China.
While initially providing no information at all, on appeal the government released hundreds of pages of almost entirely redacted material. Some of these papers were held up by Labour leader Jeremy Corbyn in a TV debate during last year’s General Election.
As the parties to the case summed up, in a case which has been characterised by substantial ‘closed’ sessions and evidence withheld from the Appellants, the government barrister made clear that additional trade talks were underway with one or more unnamed countries, and that the very existence of these talks was secret.
The court also heard that the UK government could not tell the public at what level of seniority trade talks were taking place because it was difficult to know about the seniority of officials in other countries, a claim that makes a mockery of the government’s negotiating competence.
Earlier, the tribunal heard from former Department for International Trade civil servant David Henig who told the session that during his time in the civil service trade talks had largely been regarded as secret affairs, with a strong presumption that the public should not receive any information from such talks. Comparing the British system to the EU approach, Henig characterised Britain as “at the far end of the secrecy” spectrum.
While the Information Commissioner’s barrister said that there clearly was public interest in the details of trade talks, in particular those taking place with the US, and that they hope the government will be more open going forward, there were serious obstacles to applying freedoms of information criteria to trade talks.
Nick Dearden of Global Justice Now said: “This case has given us a real insight into the Kafkaesque world of British trade policy, and has raised profound questions about the undemocratic nature of our government’s trade negotiations.
"While substantial amounts of the evidence in this case were redacted or heard in closed session, we have discovered that the government’s behaviour is even less transparent than we thought: they are actually having secret talks with unnamed countries that we’re not even allowed to know are happening.
“The government repeatedly refused to ‘confirm or deny’ that the papers leaked from the US trade talks were genuine government papers, or answer questions about those papers, even while its own ministers have discussed them on TV. And even former civil servants suggested that the government’s approach to transparency was outdated and counter-productive to achieving good trade deals.
"The Information Commissioner, while accepting many of the public interest points, came close to saying that any information in trade talks was exempt from freedom of information. Given the scope of modern trade talks to affect so many aspects of our society and our lives, this is a gaping democratic deficit which must be corrected as a matter of urgency.”
Dr Sam Fowles of Cornerstone Barristers said: “This is a highly unusual case because, while FOI cases often involve important issues of public policy, this one goes to the very heart of our constitution.
"International trade and investment agreements can have impacts that are similar to primary legislation yet parliament has almost no opportunity to subject them to proper scrutiny.
"In this context it is clearly incredibly important for the public to receive information about trade negotiations so they can hold politicians to account as best they can.”
A verdict is expected in the coming weeks.
The case is brought by Brendan Montague, on behalf of Global Justice Now. Brendan - the editor of The Ecologist - is appealing the decision of the Information Commissioner to uphold a refusal by the Department of International Trade to disclose information relating to post-Brexit trade negotiations, requested under the Freedom of Information Act.
On 19 November 2019, heavily redacted copies of the trade documents requested were condemned by Labour leader Jeremy Corbyn at the first general election debate.
Original, unredacted documents containing information of the type requested were leaked and appeared to detail trade talks between the US and the British, including the alleged opening up of the NHS to private US firms.
Brendan is the founder of Request Initiative, a community interest company set up to make freedom of information requests on behalf of NGO’s, charities and the media. In November 2017, he requested information on behalf of Global Justice Now relating to working groups established by the UK government and various states to support post-Brexit trade negotiations. The Request Initiative is no longer active, but Brendan has continued the case.
In February 2018 the Department for International Trade disclosed some information but withheld the majority of information requested.
On 19 March 2018, Brendan submitted a complaint to the Information Commissioner. On 29 March 2019, the Information Commissioner issued a decision upholding the refusal of Department for International Trade to provide the remaining information.
The Information Commissioner agreed with the exemptions from disclosure under the Freedom of Information Act cited by the Department, including prejudice to international relations and formulation or development of government policy.
Brendan and Global Justice Now argue that, even if these exemptions did apply, the public interest in disclosure of this information far outweighs the interest in maintaining these exemptions.
Despite the result of the case coming after Brexit, the outcome could impact on the way the Department for International Trade, and any other government departments, will be expected to deal with FOI requests in the future.
Marianne Brooker is The Ecologist's content editor. This article is based on a press release from Global Justice Now.