It often feels like the media have given us wall-to-wall coverage of every single aspect of Brexit. But there is a key issue which has hardly been mentioned: the Trade Bill.
The Trade Bill governs arrangements for future trade deals: with the EU, USA, Japan, India, or wherever. The next big argument after Brexit itself will be around the Government’s efforts to get a trade deal with Donald Trump. Whatever is in the law on trade agreements at that point is going to be crucial.
If Prorogation had gone ahead, the Trade Bill would just have been dropped. But the Supreme Court judgement opens up the possibility of continuing with the Bill’s passage through Parliament.
For the Government, scrapping the Bill became an added bonus from Prorogation. They wanted the Bill dropped – even though it is nearly ready for its final stage in Parliament (the “ping-pong” of amendments between Lords and Commons), and even though it was the Government’s Bill in the first place.
What changed to produce that shift in the Government’s attitude towards one of its own bills? Well, the House of Lords put into the Bill a series of amendments designed to make the process of agreeing trade deals more democratic. This is necessary because currently trade deals, like other international treaties, are dealt with through Crown Prerogative, which means the powers the Government has inherited from the monarch. Although Parliament is responsible for handling any repercussions of a deal for domestic UK law, the international agreement itself is not, currently, for Parliament to decide on.
Amendments in the Lords sought to change all that. Most importantly, they successfully added a new clause to the Bill to give Parliament power to set a negotiating mandate to tell ministers what their priorities should be in any trade negotiations, and to say that no trade deal can be ratified without having been agreed by Parliament. Agreement has to be through an amendable motion, which means that Parliament could agree to a deal subject to specified changes being made, so that it’s not just a take-it-or-leave-it decision. This is now Clause 7 of the Trade Bill, and it marks a complete break with how trade deals have been considered in the past.
Brexit keeps on bringing up the question of the relative powers of Parliament and Government. The Trade Bill is another example, and trade deals are of course a key part of what Brexit is about. We are told that we must leave the customs union in order to do “our own trade deals”. But whose deals are those – and who exactly is “we”? As things currently stand, with the Trade Bill not having become law, it’s the Government’s trade deals and not Parliament’s. That enormously weakens any campaign to resist unfair terms set by Trump in a deal with the US.
The Government were happy to see the Trade Bill just disappear. Even without Prorogation, they can now stop the Bill coming back to the Commons through their control of the timetable. They have already blocked the Bill since it was last considered in the Lords on 20th March.
However Brexit has shown that there can be a majority in the Commons prepared to vote to take control of the Commons timetable on specific days, as was done to legislate against a No Deal outcome. They could include the next time they do this an item of business which simply reads: Commons consideration of Lords amendments to the Trade Bill.
But in that situation, the Government might have another trick up its sleeve. The Trade Bill was introduced by the Government and it is a Government Bill, in that sense their property, so they could simply withdraw it. MPs or peers would then need to introduce an identical bill themselves, although that would need to start again on the process of going through Parliament. However, since it has already been debated and voted on, and since it is essential to the argument about Brexit, this could be achieved rapidly.
If Brexit goes ahead, there will undoubtedly be a campaign to save the NHS and UK agriculture from the aggressive negotiating of the Trump administration and the corporate lobbyists associated both with them and the Johnson Government. How much easier it would be to win that campaign if the Trade Bill as it stands now becomes law.