1. The UK Trade Bill – a commentary
Stephanie Switzer, University of Strathclyde

2. Why do we need a Trade Bill?

3. The essence of the Bill?
Emphasis on ‘continuity’ and ‘transitioning’ existing agreements
Presented (initially) as a technical exercise ‘rolling over’
But such transitioning recognized as ’unchartered territory’

4. What does the Trade Bill do?
Gives powers to facilitate accession to WTO Government Procurement Agreement
Trade Remedies Authority
Gives powers for delegated legislation to implement existing trade agreements
Gives HMRC additional powers to collect and share information

5. What does it not do?
Doesn’t establish new trade partnerships or set rules for doing so
Doesn’t deal with tariffs (only non-tariff measures)
So likes of unilateral preferences (GSP) not dealt with in Trade Bill
Taxation (Cross-border Trade) Bill (Customs Bill)
Doesn’t deal with future relations between the UK and the EU

6. Change in direction …
Original plan that the transition of existing agreements would take effect from exit day
No longer the case …
UK to be a ‘de facto’ party during transition period but contingent upon agreement ..

7. What are the key powers of the Bill?
Powers to make changes necessary to become Member of WTO GPA
Powers to establish the Trade Remedies Authority
Powers to HMRC to collect and share information
Powers to implement provisions of existing free trade agreements and other international agreements that mainly relate to trade (yes, not very clear!) (Clause 2)

8. Implementing existing trade agreements
Clause 2 powers
Allows delegated legislation to be enacted to implement provisions of an existing trade agreement between EU and a third country
How many such agreements? Numbers vary depending upon how you count but not just RTAs
Scrutiny of such delegated legislation originally limited – use of negative procedure proposed since these agreements also scrutinized

9. Clause 2 continued … Why is it needed?
Among other things, changes needed to make sure agreement can work in new context (EUWA doesn’t cover that)
Also possible that trading partners will ask for changes ….

10. How likely are changes?
How likely are such changes?

11. What concerns have been raised in respect of the Bill?
Very wide scope of powers
Clause 2 powers may be used to, among other things, modify retained EU law, including primary legislation which is retained EU law
Potential impact upon rights based legislation which is retained EU law
Trade agreements no longer just about ‘trade’
Parliamentary scrutiny of Clause 2 powers
Affirmative procedure (change from negative procedure)
BUT .. “allows MPs to approve, by affirmative statutory instrument, any changes in the law required by one of these continuity deals. It is a take-it-or-leave-it vote. It is not amendable and it is not meaningful.” (Wera Hobhouse (Lib Dem) 
Devolution aspects
“The Scottish National party does not want a veto. We recognise that trade is a reserved matter. Our amendments simply say that Scottish Ministers should be consulted, or their consent sought, when UK policy intersects with devolved policy.” (Stewart Hosie, SNP)
New clause 20 (SNP) was rejected by 316 votes to 37 – New Clause 20 would have ensured that devolved legislatures actively involved in setting mandates and created JMC to encourage co-operation between the devolved administrations & UK govt in drafting negotiating mandates.

12. What next?

13. Fundamental Issues
Trade Bill raises significant issues of Parliamentary democracy, how Treaties are scrutinized as well as relationship between the Executive with devolved administrations (and also what do we do about Northern Ireland?!)
For new trade agreements, commitment, ”to ensure that our new agreements and future trade policy work for the whole of the UK, it is vital that Parliament, the devolved Administrations, local government, business, trade unions, civil society and the public from every part of the UK have the opportunity to engage and contribute from the outset of the process.”
Broad parameters set out including establishment is a strategic trade advisory group but granular detail still to be defined – Scottish government published yesterday a policy paper
Clear direction of travel though in respect of intended/potential future trade deals; consultations on joining CPTPP. Also separate consultations on potential trade agreements with Australia, New Zealand and United States.

14. Thank you! University of Strathclyde Law School
Level 3, Lord Hope Building
141 St James Road Glasgow
G4 0LT
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