(a) The overlap between trade policy and devolved matters – a constitutional perspective

Contemporary trade agreements have become all encompassing. They no longer focus exclusively on classic trade issues such as trade in goods or the removal of ‘border measures’ such as tariffs.Footnote ¹² Today, the scope of trade agreements has expanded to cover a wide array of economic issues – from goods and services to procurement, competition policy, environmental and labour standards and human rights – and is increasingly focused on the removal of trade barriers that result from regulatory diversity. The emphasis is thus placed on adoption of common regulatory principles and standards on issues which, historically, have been the exclusive remit of national sovereignty.Footnote ¹³

The strong regulatory dimension of contemporary trade agreements means that these agreements intrude upon various aspects of regulatory and domestic policy-making. The upshot is that these agreements have become extremely politicised, raising significant questions concerning their democratic legitimacy.Footnote ¹⁴ This is nothing particularly new. A recent example of this politicisation can be seen in the difficulties faced by the EU in its attempts to negotiate the Transatlantic Trade and Investment Partnership (the TTIP), a trade agreement with the USA.Footnote ¹⁵ Throughout the negotiations, the EU was faced with strong resistance from politicians and civil society actors alike because of the perception that the agreement would lead to a lowering of EU regulatory standards on issues such as consumer protection and environmental standards.Footnote ¹⁶ Trade agreements are in this way increasingly characterised by a tension between the use of trade agreements to regulate transnational issues and the resulting loss of regulatory autonomy and democratic accountability.Footnote ¹⁷ This tension is heightened in the context of countries that have multi-level systems of governance, such as federal systems.Footnote ¹⁸ In these systems, where power is diffuse, trade agreements can have a direct impact on issues that are regulated at sub-national level.

In the case of the UK, a number of areas that fall under the competence of the devolved administrations could be affected in some shape or form by international trade law. Devolved matters cover areas such as health, education, economic development, transport, environment, agriculture, fisheries and forestryFootnote ¹⁹ – all topics that are routinely addressed in trade agreements. For example, not only are the agricultural and fisheries sectors subject to WTO rules relating to tariffs, subsidies and quantitative restrictions, they are also increasingly subject to disciplines imposed in bilateral and regional trade agreements.Footnote ²⁰ Under the scope of economic development policy, the ability of the devolved administrations to regulate public procurement or to provide state aid would also be constrained by international trade law.Footnote ²¹ Likewise, it has been shown that trade agreements dealing with trade in services can have an impact on the ability of countries to provide public services.Footnote ²² Inter-governmental cooperation in this area is crucial both in terms of the development of trade policy, by ensuring that the UK's trade policy reflects the positions of the various regions of the country, and also in terms of the implementation of international trade law obligations which will occur at the devolved level.

There is, it must be noted, some degree of uncertainty surrounding the scope of the devolved powers once the UK leaves the EU. Much of this uncertainty has been caused by the recently adopted EU Withdrawal Bill,Footnote ²³ whose main purpose is to ensure legislative continuity post-Brexit by converting EU law into UK domestic law (referred to as ‘retained EU law’). Clause 12 of the Withdrawal Bill precludes the devolved institutions from amending retained EU law to the extent that such amendments are prohibited under regulations adopted by UK ministers. The rationale behind clause 12 is that in the absence of common frameworks of law provided by EU law to ensure common approaches across the UK, such frameworks must now be provided centrally by the UK.Footnote ²⁴ Should the Bill be used to limit regulatory diversity within the UK, it would minimise the need for the involvement of the devolved administrations in the negotiation of trade agreements touching on regulatory issues.Footnote ²⁵

Another area of certainty concerns the question of Northern Ireland's status within the UK. As the withdrawal negotiations progressed, it became increasingly evident that the UK's future trade policy may be constrained by the need to comply with the 1998 Good Friday Agreement.Footnote ²⁶ The Good Friday Agreement provides the constitutional framework for peace and political stability in Northern Ireland and a central element of the peace process has been the removal of a land border within Ireland, which is underpinned by the Common Travel Area and EU law.Footnote ²⁷ However, the decision to leave the EU raises the prospect of a hard border within the island of Ireland. Outside the customs union and the internal market, customs checks would be required to, for example, ensure the collection of tariffs, internal taxes and the verification of regulatory compliance.

Both the UK and the EU have stressed the importance of avoiding such an outcomeFootnote ²⁸ and, in November 2018, the EU and the UK released Withdrawal AgreementFootnote ²⁹ which included a Protocol on Ireland/Northern Ireland (Protocol) proposing a ‘backstop’ solution whereby Northern Ireland would continue to comply with EU customs rules, the free movement of goods and relevant EU internal market legislation relating to goods.Footnote ³⁰ The backstop would constitute a measure of last resort, in that it would only apply to the extent that no other solution is found to avoid the application of border checks on trade in goods within the island of Ireland. This regime, however, raises a number of difficult questions with respect to Northern Ireland's status within the UK and the EU. From a trade perspective, the requirement under the backstop that Northern Ireland's customs and regulatory framework be in line with the EU rather than the UK would mean a considerable increase in devolved powers for this region and that, at least in the area of goods, Northern Ireland would be excluded from the UK's post-Brexit trade agreements.

(b) Potential impact of trade agreements on devolved territories

Besides constitutional and political considerations, the broader economic impact of trade agreements on devolved territories must not be ignored. Whilst the empirical evidence suggests that trade liberalisation, on the whole, produces positive economic effects,Footnote ³¹ it is also fairly well established that not everyone wins from trade liberalisation.Footnote ³² There is clear evidence that opening domestic markets to foreign competition can adversely affect some domestic industries and, in doing so, harm those workers and regions that rely on these industries.Footnote ³³ The negotiation of trade agreements thus typically involves a delicate trade-off between two conflicting goals: the desire to open foreign markets in those sectors where a country has offensive interests, and the need to protect domestic industries where it holds defensive interests.Footnote ³⁴

This is also relevant in relation to devolution. Inter-governmental cooperation is crucial in so far as the various the devolved administrations of the UK do not necessarily hold the same offensive and defensive economic interests. Northern Ireland offers a striking illustration of the different and sometimes conflicting interests in trade between regions in the UK.Footnote ³⁵ Whilst trade in services account for the majority of the UK's trade, services represent only a small proportion of Northern Ireland's exports. Striking disparities also emerge even in trade in goods. For example, whilst Northern Ireland is heavily reliant on exports in the foods, beverages and agricultural sectors, the rest of the UK has a greater reliance on manufacturing goods and the chemical sector.Footnote ³⁶ Equally, Northern Ireland is far more reliant on access to the EU internal market than the rest of the UK.Footnote ³⁷

Another example can be found in the case of Scotland, whose most important goods exports are mineral fuels.Footnote ³⁸ Conversely, mineral fuels do not fall in the top five commodities for exports for either England or Northern Ireland and only account for a small proportion of Welsh exports.Footnote ³⁹ The differing economic profiles of territories within the UK means that it is not beyond the realm of possibility that the negotiation of a trade agreement that creates broad economic benefits for the UK as a whole may lead to losses in certain devolved regions.

The overlap and potential areas of interaction between trade agreements and devolved matters mean that the devolved administrations may be called upon to play an important role in the negotiation, conclusion and implementation of trade agreements. This is desirable for two key reasons. First, the devolved administrations can contribute towards a more efficient trade policy. Their expertise on devolved matters and their greater grasp of the potential impact of international trade commitments on local issues can inform Whitehall's approach and lead to the formulation of more rounded trade negotiating objectives. Secondly, by ensuring that the devolved administrations’ interests and concerns are heard and taken into account in trade negotiations, the UK would enhance the legitimacy of the outcome of such negotiations. From a constitutional perspective, a scenario where trade agreements negotiated exclusively by central government could impose regulatory policies in areas that fall within devolved competence would raise questions regarding the democratic legitimacy of those agreements.Footnote ⁴⁰

This is not an insignificant concern. Trade agreements have been used by governments to circumvent domestic opposition and push through controversial regulatory reforms (so-called ‘policy laundering’Footnote ⁴¹). In the UK, whilst an Act of Parliament would have the power to indefinitely delay ratification in accordance with the 2010 Constitutional Reform and Governance Act, the ratification process itself is a crude instrument which offers limited leeway for parliamentary scrutiny.Footnote ⁴² Faced with a finalised trade agreement, Parliament will not have the flexibility to approve the agreement whilst rejecting problematic provisions. Rather, ratification comes down to a binary choice: the agreement must be approved or rejected in its totality. Parliament may therefore be placed in an uncomfortable position where it has to ratify an agreement despite concerns relating to specific issues in order not to scupper a trade agreement which, in most cases, is the result of a long process of negotiations.Footnote ⁴³ It is therefore possible that the UK government would use trade agreements to bypass potentially irksome domestic legislative processes, including on issues that relate to devolved matters.

From a practical perspective, failure to include the devolved administrations in the process of treaty making can create a dynamic of conflict and opposition between layers of government and non-implementation of trade obligations by sub-national governments. On the other hand, a consultative and participatory approach to the process can foster a sense of ownership, increasing the chances that trade obligations will be accepted and implemented at devolved government level. And, more importantly, by understanding devolved interests and the potential impact of trade rules on the devolved economies, the UK will be better placed to further mitigate the negative economic consequences of trade agreements.

(c) Current status of the debate

The above concerns have been echoed by the devolved administrations. The Welsh government specifically called for the establishment of shared governance frameworks in areas where they have ‘a direct interest in trade negotiations, particularly given that these would have important inter-dependencies with key aspects of the policy and regulatory context for devolved areas such as steel, agriculture or fisheries’.Footnote ⁴⁴ Scotland's White Paper – Scotland's Place in Europe – goes further, by asserting that the Scottish government must ‘take part in trade negotiations that impact on devolved competences’.Footnote ⁴⁵ A recent paper published by the Scottish government has also called for the development of a decision-making process that would enable Scotland to play a role in ‘the preparation, negotiation, agreement, ratification and implementation of future trade deals’.Footnote ⁴⁶ Whitehall partially acknowledged some of these concerns in the paper ‘Preparing for our future UK trade’, published by the UK Department of International Trade:

The UK has thus recognised the need to craft a trade policy that reflects the interests of the devolved administrations and is committed ‘to seek the input of the devolved administrations to ensure they influence the UK's future trade policy’. However, no clear indication is given as to whether specific processes and frameworks will be put in place to enable such cooperation with respect to trade agreements. Events since have also not provided much comfort that there is a great deal of appetite from Whitehall to explore and implement effective cooperative frameworks.

First, the recently established Joint Ministerial Council on European NegotiationsFootnote ⁴⁸ – an inter-governmental forum intended to ensure the devolved administrations are engaged in the process of negotiating the UK's departure from the EU – has been severely criticised. The devolved administrations have dismissed it as a box-ticking exercise by Whitehall, used primarily to disseminate minimal information whilst not truly engaging the governments in a consultation or negotiation process.Footnote ⁴⁹ Secondly, there have been reports suggesting that the current government would favour a decision-making process in connection with future trade agreements that would completely exclude the involvement of the devolved administrations.Footnote ⁵⁰ Thirdly, the proposed UK Trade Bill,Footnote ⁵¹ which sets a framework for the renegotiation of trade agreements that the UK is currently party to as an EU Member State – does not foresee a significant role for the devolved administrations. After the Bill was first published a number of amendments were tabled, proposing a role for the devolved administrations in the decision-making process relating to FTAs. Such amendments ranged from proposals to ensure the consent of devolved ministers for any regulations implementing FTAs within the competence of the devolved administrations,Footnote ⁵² to proposals for frameworks that would enable the consultation of the devolved administrations on FTAs.Footnote ⁵³ None of these amendments made their way into the current version of the Trade Bill, which gives the devolved administrations only limited implementation powers. In accordance with the Bill, provisions of these agreements will be carried out by the devolved administrations if a provision is within developed competence.Footnote ⁵⁴ However, there are significant restrictions on the implementation power of the devolved administrations, notably the fact that the devolved administrations are precluded from acting in areas of retained direct EU legislation and that the consent of a Minister of the Crown is required prior to the adoption of regulations making provision about quota arrangements, on account of the need for a coordinated UK-wide position on such arrangements.Footnote ⁵⁵

All in all, then, while the question of whether the devolved administrations will be involved in shaping future UK FTAs remains an open one, the general direction of travel already strongly suggests that they are likely to be sidelined from the decision-making processes underpinning the negotiation of trade agreements

(a) Trade policy in federal systems

Conducting an international trade policy in a federal system can present a specific set of challenges. Whilst trade negotiations tend to fall under the exclusive competence of central governments, in many cases, competences of constituent units of a federation will overlap with areas that are regulated in trade agreements. Sub-national entities may, therefore, have a vested interest in ensuring that their interests and regulatory preferences are reflected in trade negotiations. Further, the responsibility for implementing international trade law obligations may fall on the sub-national entities, rather than the central government. The consultation of sub-national entities during the negotiation process increases the likelihood that sub-national measures that are inconsistent with treaty obligations are identified from the outset, thus reducing the likelihood that the implementation of the trade agreement will be opposed. A number of federal systems have, therefore, developed mechanisms that aim to address these challenges and reduce the potential for conflict between various levels of government with respect to international trade policy.Footnote ⁵⁶

The nature and level of involvement of sub-national entities in trade policy decision-making processes will vary depending on the model of federalism.Footnote ⁵⁷ In some systems, sub-national entities have significant powers in relation to foreign affairs. In Belgium, for example, subnational entities have the power to negotiate, conclude international agreements and implement international trade obligations that fall within the scope of their internal competences.Footnote ⁵⁸ In others, the role of subnational entities is severely limited. In the Commonwealth of Australia, not only does the Commonwealth have treaty-making power, it can also implement treaty obligations that relate to the legislative competence of the states.Footnote ⁵⁹ This section will carry out an analysis of three federal systems (USA, Germany, Canada) where treaty making powers are centralised and where sub-national entities have varying degrees of powers with respect to treaty implementation. The different experiences and varying levels of success encountered by these systems in developing mechanisms that allow for the involvement of sub-national entities in foreign affairs can provide some clarity and inform future attempts to increase the role of the devolved administrations in the negotiation of UK FTAs.

(b) USA

The USA is a federal system where sovereignty is divided between the federal level and the states – the federal constituent units. Initially, the USA was viewed as an example of dual federalism, where the sphere of competences of federal government and state governments are wholly separate and distinct from each other.Footnote ⁶⁰ American federalism has since evolved into a system of ‘concurrent regulatory jurisdiction’Footnote ⁶¹ thanks to US Supreme Court jurisprudence which has recognised the overlap between federal and state competences and increasingly curbed state competences at the expense of federal competences.Footnote ⁶²

This peripheralisation of states is also reflected in the relatively limited role the US Constitution foresees for states in foreign affairs.Footnote ⁶³ In the field foreign affairs, the allocation of powers within the US Constitution points towards federal supremacy at the expense of US states.Footnote ⁶⁴ The US Constitution grants Congress the power to ‘regulate commerce with foreign nations’Footnote ⁶⁵ and the President the power to make treaties.Footnote ⁶⁶ By contrast, the Constitution generally excludes US states from foreign affairs and, in particular, international trade matters. They are precluded from applying ‘any imposts or duties on imports or exports’Footnote ⁶⁷ and from entering ‘into any agreement or compact with another state, or with a foreign power’.Footnote ⁶⁸

Whilst the power to negotiate and conclude international treaties rests firmly in the hands of Congress, states can play an role in implementing trade agreements. Under the US constitutional system, treaties can either be self-executing or non-self-executing.Footnote ⁶⁹ Treaties that are self-executing have direct effect, meaning that they do not require implementing legislation and can be invoked by private persons directly before domestic courts.Footnote ⁷⁰ Non-executing treaties, however, do require implementing legislation. This opens up the possibility for states to refuse to implement and comply with internarial treaties that implicate their spheres of competence.Footnote ⁷¹ It is problematic in the area of international trade law, since the US Congress has an established practice of precluding the self-executing effect of trade agreements.Footnote ⁷² In theory, the federal government could override state law in order to ensure compliance with international law. Under the doctrine of pre-emption, the federal level can pre-empt state law via federal statutes or regulations or, even in the absence of any specific federal intervention, where state action impacts on federal foreign affairs.Footnote ⁷³ Applied in the context of international trade policy, this means that state activities relating to international trade can be pre-empted where they affect, directly or indirectly, US trade policy.Footnote ⁷⁴

However, there is no known case of the federal government stepping in to pre-empt state law that would contravene an international trade agreement.Footnote ⁷⁵ For example, with respect to WTO law, the Uruguay Round Agreements ActFootnote ⁷⁶ (Act of Congress implementing WTO agreements in US law) does not grant the federal government the power to pre-empt state laws that violate WTO law. All the federal government can do is sue states for non-compliance with WTO law,Footnote ⁷⁷ a power which, according to a recent study by Timothy Meyer and Ganesh Sitaraman, has never actually been used.Footnote ⁷⁸ According to Meyer and Sitaraman, this power reflects the US congressional resistance to federal intervention in areas that affect to state competence.Footnote ⁷⁹ But the upshot is that in the US states can, and have, maintained measures that are inconsistent with international trade law obligationsFootnote ⁸⁰ and the federal government has been held responsible for the failure of states to comply with such obligations.Footnote ⁸¹

In an attempt to address these issues, the US has created communication channels through which federal trade officials and state representatives can establish dialogue on trade matters. One such channel is the state single point of contact system, whereby each state establishes a single point of contact (SPC) which is entrusted with the task of consolidating all information received from the United States Trade Representative (USTR) and relaying any feedback from the states back to them.Footnote ⁸² It also established the Intergovernmental Policy Advisory Committee (IGPAC), a body composed of representatives of elected officials of both the federal and state governments, to ‘advise, consult with, make policy recommendations and provide information to the [USTR]’.Footnote ⁸³

However, neither mechanism has proved effective in enhancing state influence on US trade policy. The SPC is barely used, because of the sparsity of relevant information provided by the USTR. The IGPAC has also not fostered federal-state cooperation for a variety of reasons. First, the operation of the IGPAC has been hampered by a lack of staffing and support at the federal level, as well as difficulties experienced by state officials in gaining security clearance to access confidential documents.Footnote ⁸⁴ This has meant that few states have participated in the process,Footnote ⁸⁵ which, in turn, has placed a significant burden on existing members to produce reports on a regular basis. Secondly, because there is no requirement to hold meetings on a regular basis (meetings can only be convened at the call of the USTR or at the call of two-thirds of its members), the IGPAC meets only infrequently.Footnote ⁸⁶

US international trade policy is thus characterised by strong tensions between the federal and state levels.Footnote ⁸⁷ Because of the pre-eminence of the federal government in treaty-making and the ineffectiveness of inter-governmental cooperative systems, states play but a marginal role in defining the country's position in international trade negotiations. But the reluctance of Congress to pre-empt state measures inconsistent with international trade law obligations means that the federal government has often struggled to convince states to implement trade liberalising commitments made in trade agreements. The resulting system is one where the US struggles to negotiate commitments in areas that affect state competences and is increasingly the subject of claims challenging state measures.Footnote ⁸⁸

(c) Germany

Under the German Constitution (Grundgesetz), although foreign relations are a competence of the federation,Footnote ⁸⁹ the sub-national entities (the Länder) must be consulted prior to the conclusion of any treaty which affects their special circumstances.Footnote ⁹⁰ The Länder also have the power to conclude their own international treaties in areas where they have the power to legislate to the extent that they receive the consent of the federal government.Footnote ⁹¹ In addition, the Länder can also influence foreign affairs through the Bundesrat – that is, the upper house of the German Parliament, which is composed of members of the Land governments.Footnote ⁹² In accordance with Article 59 of the German Constitution, international treaties regulating the political relations of the Federation or relating to subjects of federal legislation require the consent of the Bundesrat. In short, the Länder can act in the field of international relations and the federal state cannot effectively, or constitutionally, conduct foreign affairs without their active involvement.

Finally, with respect to the implementation of treaties, there is the question of whether international commitments negotiated by the federal state in areas of exclusive Länder competence can only be implemented by the latter. Although there is an argument that this should be the case, as laws relating to exclusive Länder competence cannot be enacted at the federal level,Footnote ⁹³ this is a question that has never been conclusively answered by German jurisprudence and also one where disagreement pervades in German constitutional scholarship.Footnote ⁹⁴ However, in practice, potential for conflicts between the federation and Länder in areas where international treaties overlap with Länder competences have been sidestepped by the development of formal system of cooperative federalism through which the Länder play an important role in the treaty-making process.

This need for cooperation between the two levels of government has led to the development by the Federal Constitutional Court (Bundesverfassungsgericht) of the principle of loyalty/fidelity – that is, the reciprocal obligation between the federation and the Länder to pursue ‘affirmative cooperation and restraint whenever common interest so demands’.Footnote ⁹⁵ It also led to the conclusion of the 1957 Lindau Accord between the federation and the Länder, which details the mechanics of the cooperative relationship.Footnote ⁹⁶ First, Article 3 of the Accord provides that the consent of the Länder is required where the federal state intends to conclude an agreement that falls exclusively within the competence of the Länder, and the former must be given an opportunity to participate in the negotiation of such agreements. Secondly, the Lindau Accord also provides that where it intends to negotiate an agreement that affects the interest of the Länder, the federal state must give the Länder the opportunity to express their views and concerns at the earliest possible opportunity.Footnote ⁹⁷

To put in practice such cooperation, the Lindau Accord also established a permanent body of high-ranking Land representatives in charge of coordinating all interaction with the Federal Foreign Office.Footnote ⁹⁸ Through the work of this body, the Länder have been able to secure information concerning international treaty negotiations and participate in the ‘preparatory phase of treaty making’.Footnote ⁹⁹ These bodies are then complemented by multiple federal-Länder committees that focus on specific issues that affect foreign policy.Footnote ¹⁰⁰ Finally, although as an EU Member State Germany does not have the power to conduct its own trade policy, under the German constitution, the Länder have been given specific rights with respect to decision making at EU level. Where the EU intends to act on an area that falls under supposedly ‘sensitive areas’ of exclusive competence (education, culture or broadcasting), Germany will be represented within the Council of Ministers by a representative of the Länder appointed by the Bundesrat.Footnote ¹⁰¹ This representative takes a lead role on negotiations in the Council of Ministers and acts ‘with the participation and in coordination with’ the federal government.Footnote ¹⁰² For all other matters falling within the Länder's exclusive competences, the federal government has an obligation to involve and work in coordination with a Länder representative appointed by the Bundesrat in all negotiations and discussions held at EU level.Footnote ¹⁰³

Germany's approach of inter-governmental cooperation presents at least two features that render it more effective than the systems adopted in the US. Whereas the consultation of US sub-national units is informal and depends on the goodwill of the federal government, in Germany the rights of the sub-national entities are guaranteed by constitutional law. The Länder have a right to be consulted in advance of treaty negotiations and to be involved in negotiations at EU level that pertain to exclusive areas of competence. And whereas the US has created weak and under-funded institutional frameworks for inter-government cooperation, Germany has established a strong complex network of institutions that foster regular and constructive interaction between federal and sub-federal levels

(d) Canada

At the outset, Canadian federalism presented characteristics that were not too dissimilar to those of the US system of dual federalism.Footnote ¹⁰⁴ Canada's Constitution Act operates a clear distinction between the spheres of competence of the federal and sub-national (provincial) governments by identifying the competences assigned to federal and provincial levels as ‘exclusive’.Footnote ¹⁰⁵ However, whilst the US federal system has evolved into a constitutional order where power is increasingly centralised, Canadian constitutional practice has safeguarded the autonomy of provinces by developing the principle of exclusivity of division of powers.Footnote ¹⁰⁶ While there are limits to this principle,Footnote ¹⁰⁷ Canadian federalism remains very much a system where each level of government remains ‘sovereign in its areas of jurisdiction, each adopting and implementing its own laws, programs and tax regimes’.Footnote ¹⁰⁸

One of the consequences of the exclusive character of the distribution of powers in Canada's constitutional system is that provinces have a significant role to play in shaping foreign affairs. Although the federal government has the exclusive competence to negotiate and commit Canada to international law obligations, Canada has a dualist system where the duty to implement international obligations falls on the entity with constitutional jurisdiction over the matter.Footnote ¹⁰⁹ As a result, any obligation negotiated by the federal government which falls under the competence of a province may only be implemented under domestic law by the latter. Furthermore, only the federal government can be held legally responsible for non-compliance with international obligations.Footnote ¹¹⁰ This means that in case of non-compliance by a province with international law, it is the federal government that will be held responsible and liable for the costs and damage incurred by Canada's international interlocutors.Footnote ¹¹¹

The absence of a direct legal obligation on provinces to comply with international law, combined with the absence of a dispute settlement mechanism to compel provinces to comply, means that there is little incentive for provinces to comply with international rules negotiated by the federal government which are considered to go against their own interests.Footnote ¹¹² Indeed, the inability of the federal government in Canada to guarantee provincial compliance with international obligations has, in the past, led to the collapse of bilateral trade negotiations.Footnote ¹¹³

Consequently, in the context of the negotiation of international trade agreements, which touch on so many areas that fall within the competence of provinces, the particular constitutional make up of Canada raises concerns regarding its reliability as an international partner.Footnote ¹¹⁴ To address the unique role played by provinces in the implementation of international trade law obligations and to ensure that international commitments signed on to by the federal government are implemented, Canada has, over time, institutionalised cooperative mechanisms that allow for the consultation and sometimes even the involvement of provinces in trade negotiations.

Consultations occur within the framework of the Federal-Provincial Territorial Committee on Trade (C-Trade),Footnote ¹¹⁵ a body composed of trade representatives from both the federal government and provincial executives. It meets on a quarterly basis to discuss a wide variety of trade policy issues, from broad discussions on the general orientation of the Canadian international trade policy framework and Canada's position in relation to the negotiation of bilateral or multilateral trade agreements,Footnote ¹¹⁶ to discussions on specific trade topics of relevance to the provinces.Footnote ¹¹⁷ In these meetings, the federal government representatives will outline the areas where trade agreements may harm defensive interests of provinces and balance them against those areas where provinces may have offensive interests to promote.Footnote ¹¹⁸ Beyond these meetings, the federal government also makes draft negotiating documents available to province representatives, who are invited to submit their observations and put forward their agendas. The C-Trade meetings therefore provide a platform for ongoing information exchange on the development of trade negotiations, and a venue through which provinces can influence the negotiating positions of the federal government. In doing so, the discussions enhance the legitimacy of the negotiated agreements in the eyes of the provincial executives.Footnote ¹¹⁹

The C-Trade cooperation framework is also complemented by a number of consultative committees that focus on sector-specific issues. For example, agriculture is not an issue that is typically addressed in the context of C-Trade but rather in a specifically designated federal-provincial committee.Footnote ¹²⁰ Similarly, there are several ad hoc sectoral committees dealing with mutual recognition arrangements.Footnote ¹²¹ In addition to these consultative mechanisms, the provinces maintain regular dialogue with the federal government on trade policy matters. Cooperation occurs through informal channels of communication between trade officials on both sides. However, informal cooperation remains limited to minor administrative and technical issues, rather than the more important policy issues.Footnote ¹²² This leads us to another key reason behind the success of Canadian provinces in influencing trade policy: the provinces have invested significant resources in building capacity and expertise across the board on trade policy matters, to the extent that in some areas their expertise is considered to be superior to, and their input is actively sought out by, the federal government.Footnote ¹²³

Finally, it should be noted that there are recent examples of occasions where the role of provinces in trade negotiations was elevated to that of an active participant in trade negotiations. During the negotiations of the EU-Canada Comprehensive Economic Trade Agreement, the EU, which was hoping to gain access to the provincial procurement markets in Canada, requested that provinces be involved in the negotiation process. Throughout the negotiations, the provinces’ role included the ‘co-determination of negotiating positions, as well as the direct participation as members of the Canadian delegation’Footnote ¹²⁴ in the areas of services, technical barriers to trade, labour, sustainable development investment, procurement and competition. Provincial representatives were also able to engage directly with EU trade officials on a bilateral basis to discuss particularly sensitive issues. Another recent example can be found in the context of the negotiation on the Comprehensive and Progressive TransPacific Partnership (CPTPP)Footnote ¹²⁵ where, at the request of the US, provinces were not allowed to sit at the negotiating table but were briefed after all negotiating meetings and given the opportunity to voice their concerns and advise on matters that fell within their competence.Footnote ¹²⁶

The Canadian model of inter-governmental cooperation presents a number of features that explain its success relative to other federal systems that have experimented with executive federalism in the area of trade policy. The first distinctive feature relates to the constitutional limitations imposed on the central government regarding the implementation of treaties, which have meant that Canada was strongly incentivised to develop mechanisms that have integrated provinces and amplified their voice in trade policy making. Secondly, although C-Trade effectively remains a political body that is not protected by statute, it operates under a formal structure and under strict rules. Unlike committees such as the IGPAC, that can only meet at the request of governments, the C-Trade meets on a quarterly basis. Further, as C-Trade is composed of high-level trade representatives from provincial and federal level, it combines both political heft and expertise. The committee has, as a result, been used as a forum where important trade issues can be discussed constructively, rather than simply being viewed as a forum where provinces can be merely be debriefed on the latest developments. The fact that the work of C-Trade is complemented by various working committees that focus on more specific technical issues also has two important consequences. It means that central government and the provinces are better prepared to articulate positions in advance of meetings and that minor issues can be addressed an appropriate level, which then allows C-Trade meetings to address more important and sensitive policy issues. Thirdly, the role of provinces in Canada's trade agreements has not been limited exclusively to consultations. Where needed and possible, provinces have also been involved in the negotiation process and have played a key role in in advancing trade negotiations. The close involvement of provinces in the CETA negotiations is said to have ‘improved communication, transparency and cooperation which have reduced the incentive for provincial and territorial governments to push for a greater role’.Footnote ¹²⁷ Together these features of the Canadian inter-governmental cooperation have led to the increased impact of provinces in the outcome of trade negotiations, which in turn has led to a decrease in provincial resistance to trade agreements and a reduction in the use of threats of non-implementation of trade obligations by the provinces.Footnote ¹²⁸

(e) Accounting for differing of approaches to trade federalism

The preceding discussion has shown how the nature and level of interaction between federal levels and subnational levels of government can vary significantly from one federal system to another.

Both the German and the Canadian brands of federalism have led to the development of effective intergovernmental cooperation in the field of international relations between federal and sub-national governments. In both cases, such cooperation is underpinned by the existence of strong constitutional powers that have, either directly or indirectly, allowed sub-national entities to wield influence in foreign/trade policy.

In Germany, the power of the Länder to affect international relations is directly recognised and protected under the German Constitution, which enshrines the right of the Länder to be consulted in the event that the federal government intends to conclude a treaty that affects Länder competences. The right to be consulted is then complemented by the constitutional principle federal comity or loyalty and reinforced by the Lindau Agreement, which requires the prior consent of the Länder when the federal government concludes a treaty that falls under the exclusive jurisdiction of the former.

Besides, even in the absence of such guarantees, it would have been very difficult for the German federal government to ignore the Länder in the conduct of foreign affairs, as the Länder have the power to implement international obligations in their fields of competence. Indeed, in the case of Canada, provinces do not have de jure treaty-making powers. There is no constitutionally protected right to consult provinces or to seek their consent on matters that would affect provincial competences. But the mere fact that provinces have the exclusive competence to implement international obligations in their fields of competence gives them considerable leverage in international trade negotiations.

In both the German and Canadian cases then, there were good reasons to develop formal institutional structures through which both levels of governments can cooperate on foreign affairs matters that overlap with sub-national competence. In the specific case of Canada, it has led to the development of dedicated formal structures of cooperation in the area of international trade, which allow provinces to not only be consulted on the progress of trade negotiations but also, in some cases, to actively participate in these trade negotiations

At first sight, US federalism should have led to the development of a similar system to that of Canada. The US federal government has the sole competence to conduct negotiations and conclude trade agreements but only has limited powers to compel states to comply with international trade obligations. However, whilst these circumstances led to the development of a strong system of inter-governmental cooperation in Canada, in the US, states have largely been left out of the loop when it comes to trade negotiations. One explanation for this, provided by Christopher Kukucha, relates to the distinction between the concepts of intra-federalism and inter-state federalism. In intra-state federal systems, sub-national interests are represented at the federal level through state parliamentary representatives.Footnote ¹²⁹ The US provides a classic example of such intra-state federalism. It has a bicameral system where legislators are subdivided into two powerful parliamentary assemblies, one of which – the US Senate – is composed of members who are entrusted with the task of representing sub-federal entities. In such systems, the federal executive places far more emphasis on addressing state interests voiced within the national parliamentary systems than on managing relationships with the executives of sub-federal entities.Footnote ¹³⁰ By contrast, in federal interstate systems such as Canada, sub-federal executives tend to be far more powerful. Whilst Canada also has a bicameral system of representation, its second chamber is comparatively weak compared to that of the US because it is composed of senators who are only loosely connected with the provinces and who are appointed by political parties rather than being directly elected.Footnote ¹³¹ The upshot is that the federal executive has, historically, been far more engaged with the provincial executives when dealing with matters that affect the latter.Footnote ¹³²

(a) Pre-eminence of national executive in UK foreign affairs

The UK is not a federal system but rather a territorially devolved constitutional system.Footnote ¹³³ By comparison with federal systems, the UK remains a highly centralised state, where devolved territories enjoy far less autonomy and fewer constitutional guarantees than sub-national federal entities.Footnote ¹³⁴ This can be seen in the very limited role played by the devolved administrations in foreign policy. Foreign affairs are a reservedFootnote ¹³⁵ (or ‘excepted’Footnote ¹³⁶) matter, meaning that the negotiation and conclusion of international treaties fall under the exclusive competence of the Crown. Indeed, the broad powers of the executive in the field of foreign affairs was recently confirmed in Miller,Footnote ¹³⁷ where the UK Supreme Court confirmed that the power to make treaties fell under the scope of the Royal prerogative.Footnote ¹³⁸

Furthermore, the UK adopts a strong dualist approach, whereby international treaties must be incorporated into domestic law in order to be given effect.Footnote ¹³⁹ This is achieved through an Act of Parliament – whether an Act specifically implementing the treaty or one delegating or providing a framework for future implementation.Footnote ¹⁴⁰ In accordance with the Sewel Convention,Footnote ¹⁴¹ whilst the UK Parliament retains the authority to legislate on any issue, the government must proceed with the understanding that, barring the consent of devolved legislature, the UK Parliament must not legislate on devolved matters.Footnote ¹⁴² In theory, the Sewel Convention could be triggered where an Act of Parliament is required to domesticate an international treaty which touches on devolved matters. However, in Miller,Footnote ¹⁴³ the UK Supreme Court dismissed the idea of the Sewel Convention as a ‘legal rule justiciable by the courts’,Footnote ¹⁴⁴ viewing it instead as a political convention aimed merely at ‘facilitating the harmonious relationships between the UK Parliament and the devolved legislatures’.Footnote ¹⁴⁵ In doing so, Miller confirmed the notion that compared to federal systems, in the UK's system of devolution, sovereignty remains very much centralised.

The devolved administrations are not completely excluded from UK foreign affairs. They do have a responsibility to enact implementing legislation, where an international obligation falls wholly within a devolved matter.Footnote ¹⁴⁶ However, even here, central government has the power to order the devolved administrations not to adopt a measure or to revoke a measure which it considers to be incompatible with international obligations.Footnote ¹⁴⁷ There is, therefore, only a very limited role for the devolved administrations in the shaping and implementation of UK foreign policy.

(b) Inter-governmental relations in foreign affairs

Despite this reduced role for the devolved administrations, to the extent that the foreign policy conducted by the UK government can impact on devolved matters, the UK has developed a series of agreements which provide guidelines and mechanisms to ensure cooperation in policy making in matters that fall within the sphere of competence of the devolved administrations.Footnote ¹⁴⁸ The main agreement is embodied in the Memorandum of Understanding on Devolution which provides the various principles underpinning inter-governmental relations, such as the principles of communication and consultation, the duty to cooperate and the principle of confidentiality. This memorandum is then complemented by five supplementary agreements (concordats) which address specific aspects of the relationship between the various administrations.Footnote ¹⁴⁹

The first concordat establishes a Joint Ministerial Committee (JMC), the main institutional body through which cooperation occurs, as well as concordats dealing with matters such as EU affairs, international relations, statistics and financial assistance to industry.Footnote ¹⁵⁰ The JMC meetings can take two forms: (i) a plenary JMC meeting, which is held on an annual basis and comprises the Prime Minister, the Deputy Prime Minister, and the First Ministers and Deputies and the Secretary of State of each devolved administration; and (ii) functional JMC meetings, comprising departmental ministries of the UK and the devolved administrations, which are held upon request of the relevant administrations.Footnote ¹⁵¹

The concordat on international relations sets out a number of guidelines for cooperation between the UK government and the devolved administrations in international relations. First, there are requirements relating to information exchanges.Footnote ¹⁵² The UK government is required to make the devolved administrations aware of international developments that touch on devolved matters, and the devolved administrations must inform the government of developments in the devolved administrations that may affect international relations. Secondly, with respect to the shaping and development of foreign policy, the UK government must consult the devolved administrations on matters of foreign policy that will affect devolved matters. The devolved administrations may also ‘hold working level discussions’Footnote ¹⁵³ with countries or within international organisations on matters that pertain to devolved matters, and may form part of UK negotiating teams on negotiations that ‘bear directly on devolved matters’.Footnote ¹⁵⁴ Thirdly, with respect to implementation, the concordat recalls that the devolved administrations are legally bound to implement all international obligations undertaken by the UK, even in areas that pertain to devolved matters.Footnote ¹⁵⁵ The UK government must notify any new international obligations to the devolved administrations whose implementation falls within their remit.Footnote ¹⁵⁶ Although the devolved administrations are free to decide how to implement these obligations, they must consult with relevant UK departments to ensure the consistent and compatible implementation of these obligations throughout the territory of the UK.Footnote ¹⁵⁷ In the event of legal proceedings being brought against the UK before international courts or arbitration panels, the UK will act as the sole representative.Footnote ¹⁵⁸ The devolved administrations can, if the cases relate to the implementation of devolved matters, contribute to such proceedings by issuing instructions to counsel and participating in hearings.Footnote ¹⁵⁹ In relation to the issue of liability, the devolved administrations are responsible for the payment of any compensation and costs awarded against the UK for their failure to implement or enforce an international obligation.Footnote ¹⁶⁰

(c) The limited effectiveness of the UK system of inter-governmental relations

In theory, the concordats should provide a framework for inter-governmental cooperation in areas of foreign policy that overlap with devolved matters. In practice, however, the concordats have not worked particularly well. In 2015, the House of Lords Select Committee on the Constitution issued a report on inter-governmental relations which found that, with the exception of the European Affairs sub-committee, the JMC had proved highly ineffective in fostering cooperation between the UK government and the devolved administrations. Representatives of the devolved administrations viewed the JMC as a forum that is used to air broad political grievances rather than discuss practical issues in a constructive manner.Footnote ¹⁶¹ The approach of the UK government to JMC was also criticised as a box-ticking exercise, and because the meetings were rarely used to discuss any issues of substance.Footnote ¹⁶² The modest success of the EU Affairs sub-committee was attributed to the fact that the meetings were organised by the Foreign and Commonwealth Office, a body used to negotiating with people holding different positions, and the fact that the need to settle a common position in advance of meetings at EU level meant that the work of this sub-committee was more focused compared to the others.Footnote ¹⁶³ Even here, however, it was noted that the views of ministers of the devolved administrations were heard but routinely ignored.Footnote ¹⁶⁴

Clearly then, the UK's system of inter-governmental cooperation, as it currently stands, would not provide the devolved administrations with the type of influence on trade policy that is bestowed on Canadian provinces. This should come as no surprise as, first, the UK the devolved administrations do not have a right to be consulted and lack the leverage available to Canadian provinces and German Länder which results from their competence to implement international obligations that fall within their competences. Because the concordats are not legally binding, and therefore create no obligation to cooperate, the UK the devolved administrations are left mostly reliant on the goodwill of the central government to adopt an inclusive and cooperative approach to engage with the devolved administrations and reflect their viewpoints in national policy. This is aptly illustrated by the fact that no JMCs were held from 2002 to 2008.Footnote ¹⁶⁵ There are also numerous of examples where the UK has simply decided against involving the devolved administrations in any type of consultative process, even in devolved matters, in order to avoid having to accommodate their views.Footnote ¹⁶⁶

Secondly, the concordats only establish very loose forms of cooperation. The plenary JMC meeting is held on an annual basis and is consequently viewed mostly as a formality and, at best, an opportunity to present and discuss broad policy agendas. And whilst the functional JMC and working level groups should in principle allow for more detailed technical discussion, these are only held on ad hoc basis, meaning that they do not provide the sort of continuity that is required in order to foster mutual trust. In practice, most cooperation between the UK national and the devolved administrations has occurred through informal channels and the development of personal relationships between administrations.Footnote ¹⁶⁷ This creates the possibility that the level of cooperation will vary from one devolved administration to another or even within one administration, depending on the ability of individuals to engage with each other.Footnote ¹⁶⁸ There are also problems associated with the lack of accountability in informal cooperation, as it is more difficult to assess the nature and impact of discussions that are based on bilateral relationships.Footnote ¹⁶⁹

(a) A new framework for inter-governmental cooperation in trade?

The deficiencies associated with the UK's system of inter-governmental relations may prove problematic in the context of the UK's post-Brexit trade policy, as EU trade powers are repatriated and subject to increased domestic public scrutiny. A good example can already be seen with respect to the growing debate surrounding the possibility of a future UK-US FTA and, in particular, the potential impact on areas of sensitivity for the devolved administrations, such as food standards (a devolved matter) and geographical indications such as Scotch Whisky.Footnote ¹⁷⁰ Under the current system, it would be perfectly possible for the UK government to negotiate a trade agreement that would affect these matters without consulting or involving the devolved administrations in any meaningful way.

To address these deficiencies, the UK should consider the establishment of a formal and institutionalised system of cooperation based on regular consultations. The formal cooperation mechanism can adapt the template set by Canadian inter-governmentalism and create a Joint Committee on Trade (JCT) focused exclusively on trade. The JCT would be composed of relevant ministerial representatives of the central government and the devolved administrations and meet four times per year to discuss major issues relating to trade agreements, such as the setting of negotiation objectives and common positions, the identification of areas where trade agreements should reflect the specific circumstances of the devolved territories and even the potential disputes that may arise in connection with this agreements.

However, simply transposing the Canadian system of inter-governmentalism into the UK would not be a magic bullet given the sui generis characteristics of UK devolution. The constitutional restrictions on the powers of the devolved administrations mean that the leverage available to the devolved administrations to force the central government to take their interests and views into account when negotiating trade agreements will be limited. Without a constitutional right to be consulted and the threat of non-implementation, the power relations between central government and the devolved administrations are strongly skewed in favour of the former. And as the experience of inter-governmental relations in the UK show, there will be an incentive for central government to simply ignore the devolved administrations where it considers that they will create obstacles to the achievement of their foreign policy goals.Footnote ¹⁷¹

For this reason, it is argued that that the UK should go further than the Canadian model, and enshrine in statute the right of the devolved administrations to be consulted in connection with future UK trade agreements as well as the institutional and procedural frameworks through which such consultation can occur. Inter-governmental cooperation in this area would be made legally binding to ensure that cooperation occurs on a quarterly basis rather than on an ad hoc basis. It is further proposed that the right of the devolved authorities to be consulted would cover all aspects of trade agreements – that is, the right of the devolved authorities would not be limited to the components of trade agreements that touch on devolved matters. This is because, as discussed,Footnote ¹⁷² irrespective of the scope of devolved matters, trade agreements stand to have significant economic impact on the devolved regions.

The additional security resulting from the requirement to hold regular meetings would encourage the devolved administrations to assume responsibility in trade matters, and to make the necessary investment to develop capacity and expertise in trade matters.Footnote ¹⁷³ As the Canadian model shows, regular dialogue would also build trust between the parties, which is more likely to lead to constructive cooperation.Footnote ¹⁷⁴

The formal institutionalised mechanisms of cooperation should also reflect the complex nature of contemporary trade agreements. As discussed,Footnote ¹⁷⁵ the complexity relates to the variety of subject matters regulated in trade agreements as well as the processes involved in negotiating, concluding and implementing them. First, the UK's new institutional framework for inter-governmental relation in trade should reflect the fact that there a number of areas covered in trade negotiations that overlap with devolved matters. Here again, the UK could take inspiration from the Canadian model and grant the JCT the power to establish working committees focused on key areas of strategic interests for the devolved administrations. These sub-committees would be composed of civil service staff with expertise on specific trade issues from both central government and the devolved administrations, and would be used to carry out more technical discussions. Secondly, the UK should consider going beyond the Canadian model by ensuring that cooperation takes into account the dynamic nature of trade agreements. Cooperation should not be limited to initial consultations, but encompass the entire lifespan of trade agreements from the decision to launch negotiations to the conclusion of the agreement and even beyond. Indeed, in the Canadian model, consultations have so far been limited to the negotiation phase of trade agreements.Footnote ¹⁷⁶ Once concluded, the role of the provinces is typically limited to that of implementing the trade agreement. Yet, there has been a recent trend in trade agreements between large developed economies to incorporate regulatory cooperation mechanisms that are intended to provide a forum where regulatory divergences can be identified and ironed out progressively.Footnote ¹⁷⁷ This is the case in the EU-Canada CETA, which establishes a Regulatory Cooperation Forum to explore and discuss policy issues and initiatives that may affect trade.Footnote ¹⁷⁸ A similar mechanism was also considered in the context of the negotiations for the EU-US TTIP,Footnote ¹⁷⁹ leading some to refer to the agreement as a ‘living agreement’ where regulatory approximation can be discussed and new norms developed.Footnote ¹⁸⁰ Finally, the CPTPPFootnote ¹⁸¹ – an agreement the UK has recently signalled its intent to accede to post Brexit – also contains a ‘Regulatory Coherence’ chapter which creates an institutional framework with the aim of, inter alia, assessing the possibility of eliminating regulatory barriers on an ongoing basis.Footnote ¹⁸² In other words, contemporary trade agreements are increasingly looking to create institutional frameworks that allow the parties to negotiate regulatory issues post-ratification. And if the devolved authorities are to be granted the right to be consulted in the context of trade negotiations, there is no reason why this right should not also be extended to negotiations that are being held post-ratification, especially if such negotiations pertain to regulatory areas that overlap with devolved matters

Finally, consideration must also be given to the right of the devolved administrations to participate in trade negotiations. Again, the UK model could go further than Canada by providing a legally binding obligation to include representatives from the devolved regions in negotiations where such negotiations relate specifically to devolved matters. Both the Canadian and German experiences show that the inclusion of sub-national representations in international negotiations need not undermine the cohesion of a country's negotiating position. On the contrary, in both cases, the evidence suggests that the involvement of representatives of the devolved administrations would add a layer of legitimacy to the negotiation process and improve the chances of a successful outcome. In other words, allowing for such representation would not only reflect the fact that the devolved territories are also responsible for matters addressed in trade agreements, but also further reinforce buy-in for such agreements at devolved levels. Further, the participation of the devolved administrations could also facilitate trade negotiations. Since they are more experienced and attuned to the complexities of matters that fall wholly within devolved competence, they may also be better placed to put forward solutions and break deadlocks that may arise in relation to such matters.

(b) Potential limitations of the proposal

A system along such lines would not be a panacea. First, there is a lot more that the devolved administrations can do to enhance their influence. A significant investment will have to be made by the devolved administrations to improve their capacity in dealing with trade policy issues. There is very little point in giving the devolved administrations a platform to influence decision-making at Whitehall if they are not able to formulate coherent positions on the wide array of complex issues that are covered in trade agreements. This will require, for example, the allocation of resources to recruit and build expertise in the field, the implementation of mechanisms that allow for coordination of expertise of policies across internal departments and the further development of para-diplomatic activities.Footnote ¹⁸³

Secondly, there are limits to what can be achieved through cooperative frameworks. There is no guarantee, nor should there be one, that the devolved territories will secure all of their respective objectives in future trade agreements. As it negotiates trade agreements, the UK will inevitably face difficult choices and be forced to make trade-offs between its sometimes conflicting economic interests. The price for opening up a lucrative foreign market in a sector where the UK has a clear offensive interest may be to open its own market to foreign competition in sectors where it is at a comparative disadvantage. In such cases, however, the value of a formalised system of inter-governmental cooperation is that these difficult choices can be openly debated prior to and during the negotiation processes, whilst also giving governments time to explore domestic adjustment measures that can be put in place to compensate workers and sectors that will lose out from trade liberalisation.

Finally, it must be noted that formal cooperation also presents certain drawbacks. One obvious counter-argument to the above proposals is that it creates overly burdensome barriers to the negotiation of trade agreements. This concern is further enhanced by the fact that the UK currently finds itself in a race against time to sign as many trade agreements as possible to compensate for the inevitable loss of market access that will result from leaving the EU – both in terms of access to the EU internal market and third countries with whom the EU has preferential trade arrangements in place. But this argument is not particularly persuasive. The experience of trade federalism suggests there, even in countries where subnational entities have a significant influence on international trade policy matters, federal governments tend to retain the final say in the determination of trade policy with the role of sub-national entities being limited to that of consultation. As Farfard and Leblond point out, ‘in the final analysis, the role of subnational government remains advisory and the federal government can, and routinely does, ignore the concerns of one or more subnational governments’.Footnote ¹⁸⁴ One might add to this that any attempt to exclude the devolved administrations from the realm of international trade politics, whilst perhaps tempting in the short term, will prove ineffective and even counter-productive in the long-term. It is a far better approach to develop mechanisms that empower the devolved administrations and acknowledge their interests in trade policy, whilst at the same time carefully delineating the limits of their involvement in the process of the negotiation and conclusion of trade agreements. Such an inclusive approach, where trade policy is shaped by a broad-based debate, would also send a far more positive signal in terms of the type of country that the UK wishes to be in a post-Brexit world.