Against a narrowing circle: Secrecy and the TPP Negotiations

As governments and corporations push to finalise negotiations for The Trans-Pacific Partnership Agreement (TPP), people who support wide participation in policy development are increasing the pressure for open discussion. This is not a special interest issue.

It is in the interest of a broad collection of individuals and organisations working in health, education, human rights, journalism, ecology, welfare, workers rights, etc. to oppose the secrecy over the TPP negotiations, an attack on the democratic process. The shying away and labeling of this issue as ‘special interest’ is a success for secrecy. Maybe courage is contagious, but silence is too. If we don’t respond, the strategy of exclusion gains power and is validated.

Photograph of the leaders of TPP member states grinning in front of their nations' flags.
Leaders of the TPP member states and prospective member states at a TPP summit in 2010. Image by Gobierno de Chile used under CC BY 2.0 license.

The Trans-Pacific Partnership Agreement

The Trans-Pacific Partnership Agreement (TPP), is a trade agreement between 12 member nations that cover 40% of global GDP: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the USA and Vietnam.

The TPP’s stated goals are “economic integration” and increasing “market access” but the deal covers far more than trade. There are sections on labour, the environment, e-commerce, intellectual property, foreign investment, financial services, telecommunications, government procurement, Investor State Dispute Settlement and more. The treaty text prescribes how member states will legislate in these areas. Negotiations started in 2010 and there is huge pressure to finalise the text; this week the 2013 deadline was missed and negotiations have been extended into January. There is no published list of chapters or contents (though a new leaked chart contains at least a partial list).

Only a handful of representatives from each member state are allowed access to the negotiation text. No one else, not even elected representatives outside of the negotiation team, are allowed to know what’s on the table.

Negotiations are “off the record”—or at least not on a record you and I may see. Roughly 700 lobbyists (‘advisors’), mostly representing corporate interests, have access to the draft negotiation text to give feedback.

Hundreds of thousands of people around the world have spoken out demanding public scrutiny of public policy; signing petitions and attending protests.

Last week, Greens Senator Peter Whish-Wilson successfully passed a motion requesting that the final treaty text be made available to the public “well before it is signed.”

Since then, the Senate’s request has been refused by the Coalition Government who say the release will “damage Australia standing”. The treaty will be tabled in Parliament after it is signed. MPs may still vote not to ratify the deal, but would require members of the coalition to cross the floor.

A few weeks ago the Progress 2013 conference was held in Melbourne. The conference was a gathering of Australian NGO’s and people interested in civil society, covering a wide range of issues: welfare, climate change, conservation, indigenous rights, civil rights, poverty, education, health and more. During one of the main sessions, David Ritter, CEO of Greenpeace Australia Pacific, said that one of the successes of neo-liberal forces is having clear set of policy principles that a diverse assembly of business interests can lobby for: deregulation of labour markets, privatisation of public goods, increased legal protections of profits, corporate tax-cuts etc. . Ritter called on those attending to develop a corresponding set of clear principles for an inclusive, progressive, sustainable democracy.

Transparency is a foundational principle of functional, participatory democracy and the TPP is a turning point before us. Secrecy over policy development of this scope shows deep contempt for the public interest.

Used car sales

A tightly guarded trickle of information for the purpose of political control has become normal government practice. According to Nobel laureate economist Joseph Stiglitz, in a transaction, if one side holds more information than the other, the concept of a market price based on supply and demand breaks down. When a supplier has more knowledge they can set higher prices above what would otherwise be market price—the customer doesn’t know they’re getting ripped off. Stiglitz calls this ‘information asymmetry’.

If you’re buying a used car, but don’t know that previous owner Jim drove it into a lake last year, it’s difficult for you to get a good deal. You need detailed information on what’s being negotiated to get value for money.

The TPP is a deal between you and I, and corporations (via government) to set rules for how we act in society.

Stiglitz applied his thinking on information to government:

Meaningful participation in democratic processes requires informed participants. Secrecy reduces the information available to the citizenry, hobbling their ability to participate meaningfully…We often speak of government being accountable, accountable to the people. But if effective democratic oversight is to be achieved, then the voters have to be informed: they have to know what alternative actions were available, and what the results might have been…

We can’t participate in decision making when we aren’t well-informed. We need to know the context and facts, the range of potential paths and the possible costs and benefits to work out what to do. We need primary source material (documents and data) to be available for explanation and analysis from a diversity of perspectives. A society where the widest possible group are represented in decision-making is simply not possible unless comprehensive information about decisions and their outcomes is accessible.

For the TPP, U.S Trade Representative Ron Kirk says secrecy from the public is needed to “preserve negotiating strength and to encourage our partners to be willing to put issues on the table they may not otherwise”.

Stiglitz addresses this position:

The argument that public discussions—including discussions of uncertainties and mistakes—will undermine the authority of public institutions is one of the most corrosive of democratic processes. It is akin to the kinds of arguments that authoritarian regimes conventionally use. I would argue, on the contrary, that were governments to deal honestly with their citizenry, confidence in government and public institutions would increase, not decrease.

Stiglitz, 1999, On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life

Unfortunately, in our society these arguments for secrecy are commonplace. You can see this strategy at work in immigration policy; basic information must be smuggled out for people to see the detail of policies enacted on their behalf.

Another common defence of the TPP’s secrecy is that ‘this is just the usual process for trade agreements’ and that negotiators are conducting private consultation in which affected stakeholders (public interest advocates in addition to the lobyists) can voice concerns. Public Health Lecturer Deborah Gleeson points out that, “since those being consulted don’t have much information about what’s in the agreement and aren’t permitted to view the text, meaningful input is difficult. Indeed, it’s farcical to be consulted about the details of text you haven’t seen!”

The TPP negotiation process is designed to foster confusion and will produce a deal that would not stand up to public oversight.

On December 6th Stiglitz published an open letter to TPP negotiators criticising the secrecy. He warns that:

The TPP proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible.

Breaking the silence

On 13th November Wikileaks published the Intellectual Property (Rights) Chapter of the agreement, this is the secret draft negotiation text with annotations for the positions of member nations on individual clauses. For the first time, we can see clearly what is on the table and the stance our representatives are taking.

The leaked negotiation text includes clauses to expand the term and scope of patents to cover medical procedures, force your ISP to police your internet usage, extend copyright terms and increase opportunities for multi-nationals to sue governments for loss of profits due to domestic policies through Investor-state Dispute Settlements. This is just the intellectual property chapter, the rest of the agreement remains in the dark.

For more information on what’s in the leaked chapter see the Electronic Frontier Foundation’s TPP guide and Choice for an Australian perspective on the deal. For more legal detail see analysis by James Love at Knowledge Ecology International. There is ongoing coverage at New Matilda, The Conversation, The Sydney Morning Herald, and elsewhere.

Since the leak Australia’s Trade Minister Andrew Robb has said “the Government will not permit any outcome in its trade negotiations which undermines the PBS Pharmaceutical Benefits Scheme or Australia’s health system more generally.” However, regardless of Robb’s claims, Australia will be held to the ratified text of the TPP and in its current form it would raise the price of medicine by slowing the process to generic manufacturing.

In these negotiations—where the biggest economy in the world is playing hard-ball—how does it help our bargaining power for all negotiations to be secret? If you were standing for the public interest, wouldn’t you want the public there to back you up?

The contents of the leaked chapter has been called a ‘corporate wish list’—what would you expect from closed negotiations between a handful of politicians and an amy of corporate lobbyists? Is it possible for an agreement of the wide scope of the TPP to have an outcome in the public interest if public access is prohibited? Is this a good model for policy development?

It is not only the details of policy outcomes that is crucial for wide participation. The details of negotiations, of what alternatives were considered, is crucial to make an assessment. Often this information is made especially inaccessible. In Australia, cabinet discussions are exempt from freedom of information requests. Major changes in public programs often seem to come out of thin air. We can only guess policy makers’ motivations and what alternatives were discussed.

It proves the vital relevance of groups like Wikileaks and people like Chelsea Manning, Edward Snowden and Jeremy Hammond, that the only way we could discover the deals being made on our behalf is by concerned people on the inside passing information out to us.

To maintain secrecy, often the circle of those involved in decision making is greatly circumscribed; those who are able to provide valuable insights are cut out of the discussion. The quality of decision making is thereby weakened. There is, again, a vicious circle. With more mistakes, public officials become more defensive; to protect themselves, they seek even more secrecy, narrowing in the circle still further, eroding still further the quality of decision-making.

Stiglitz, 1999, On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life

Already, a range of groups and individuals are speaking out against the contempt for participatory democracy visible in the TPP negotiations. Doctors Without Borders (Médecins Sans Frontières/MSF) have long recognised the impact the TPP will have on the lives of people they work with.

There are groups organising demonstrations against the negotiations, there have already been actions in most capital cities. A new website, Australians Against The TPP has launched with suggestions for what you can do.

Everybody has a role in opposing this attack on the public interest, even something small broadens the group involved. Support the work of whistleblowers who risk everything so that we can know what’s going on; demand a say in the direction our laws drive us. Already the public outcry has prompted someone brave on the inside to pass out the crucial draft chapter.