The ‘public morals’ mirage

There is a persistent narrative circulating that suggests that, now the UK has ‘taken back control’, we can simply reach into the GATT toolbox, pull out Article XX(a) and cite ‘public morals’ to block imports produced to lower animal welfare standards. It is an appealing argument, but it is one that misleads Ministers and the industry alike.

The reality is that those advising that such a path is legally paved are overlooking the sheer height of the hurdles involved. Under World Trade Organization (WTO) law, there is a clear hierarchy of merits. Any restriction on trade is, first and foremost, an infringement of Article XI, which prohibits quantitative restrictions. To then seek cover under the ‘General Exceptions’ of Article XX is to enter a technical minefield that is rarely navigated successfully. They are called exceptions for a reason.

The ‘public morals’ argument is not a magic wand. For a measure to be justified, the UK would be required to prove that a ban is “necessary” – a high bar that demands we seek the least trade-restrictive approach first. If the policy goal is to inform consumers or satisfy moral qualms, the WTO will inevitably point toward labelling or certification schemes rather than a blunt, disproportionate import ban.

Take the case of foie gras. It seems an obvious candidate for a ‘public morals’ ban. However, even Switzerland, seen as a global benchmark for high welfare, has recently backed away from a total ban. The Swiss recognised that a ban would likely fail a WTO challenge, preferring instead to implement mandatory labelling to differentiate domestic, high-welfare products from imported, force-fed ones.

India has, in fact, imposed a ban on foie gras imports, but the only reason that ban still stands is that it hasn’t been challenged. If it were, it would almost certainly fail for the same reasons identified by the Swiss. The fact that it hasn’t is more a reflection of the relative benefits of a challenge, in a market where imports are negligible, than its legality.

Much of the misplaced confidence in the ‘public morals’ exception is based on the WTO’s ‘Seals’ case. It was certainly a landmark ruling in recognising the ‘public morals’ argument, but that ruling was based specifically on the inherent cruelty in the hunt itself. It is a world away from trying to ban standard agricultural products due to variations in production practices. The WTO has a long-standing aversion to one nation telling another how it should produce its food as a condition for trade.

We must also dispel the myth that an EU SPS alignment agreement alone would prevent us from imposing these restrictions. While it is materially true that the agreement would preclude such bans, the point is moot. These restrictions would fall foul of WTO rules whether we are aligned or not. The constraint isn’t Brussels; it’s the global rules-based system we helped write.

Producers are quite right when they call for a ‘level playing field’, as increasingly higher welfare costs put domestic product at a competitive disadvantage. But this is a fatal admission in a trade dispute. The WTO is adept at spotting a “disguised restriction on trade” designed for economic protectionism under the veneer of moral concern. And that is an argument the WTO will not accept!

Despite having left the EU more than six years ago and signing numerous FTAs, the UK Government has not imposed a single new welfare-based import restriction. Why? Because the Government knows they would not be WTO compliant.

Ultimately, the UK benefits immensely from operating within a rules-based system. To risk our international trade relations to make a moral point on welfare, especially if this were done in the hope of not being challenged rather than being legal, would be to invite an arms race of reciprocal trade restrictions – a risk no sensible UK Government is willing to take. If we wish to raise our standards, all well and good. But advisers must stop misleading us: we cannot protect those standards by building walls the WTO will simply tear down.