The sticking points of the ‘Teflon Bill’ – How the Trade Bill has been a battle ground for greater parliamentary scrutiny and why nothing sticks

By Sabine Tyldesley

The Trade Bill 2019-21 was back on the floor over the last fortnight, as the Bill undergoes its ‘ping-pong’ stages, where both Houses of Parliament debate whether to accept amendments from the other place. The Commons rejected Lords amendment 1B on parliamentary scrutiny and on Tuesday the Lords agreed not to insist on its Amendment.

The Trade Bill has been informally called the ‘Teflon Bill’ for its ability to make it through each stage unamended. This is not for a lack of interest, nor for a lack of trying by MPs and Peers. In fact, this is the second iteration of this Bill, the first one introduced in the 2017-19 Session but fell after its Third Reading in the Lords in March 2019 when the General Election was called. The first version of the Bill was amended in both the Commons and the Lords much to the anguish of Government and had become a battleground for greater parliamentary scrutiny.

When the Bill fell and had to be re-introduced by the new Government most, but not all, of its amendments were not included in the new Bill.

Now history is repeating itself and parliamentarians are again arguing for a greater role for MPs to decide on trade deals. This has two dimensions: 1) the desire to have a say in what the trade deals cover; 2) the desire to decide who the UK trades with in the first place.

The first aspect has in the past been associated with the desire to ‘take the NHS off the table’ and guarantee high food standards in any talks with the USA.

The second was brought back to the fore due to a couple of amendments made last week which dealt with Parliamentary approval of trade agreements as well as Parliament’s role in determining “serious violations” by potential trade partners. This was sparked by the genocide in Xinjiang and would allow Parliament to block trade deals with countries which were seen to breaking the law (particularly when it comes to human rights).

A recent article penned by former Secretary of State for Exiting the European Union David Davis MP and Chair of the Environment, Food and Rural Affairs Select Committee Neil Parish MP supported the call for MPs to be given a guaranteed say on new trade deals.

But here is the rub: The Trade Bill only covers those trade agreements the UK had as an EU Member State that the UK is seeking to “roll over” and gives the Government powers to implement these. The Bill is not intended to deal with future trade agreements with countries such as the US and China.

It is this simple distinction which has helped the Government keep so many amendments at bay. Helped by a strong Conservative majority in the House of Commons, the amendments on parliamentary scrutiny in this Bill and its predecessor have been rejected five times.

But the Bill has nevertheless been plagued with being used as a vehicle to address future trade deal concerns, including food standards, environmental and human rights records of possible trading partners.

Parliament’s existing powers to be involved in trade deals are covered by the Constitutional Reform and Governance Act 2010 (so-called CRaG Act).

The CRaG process does not require Parliament’s approval for the Government to ratify treaties but de facto gives the Commons the power, in theory, to block ratification. But Parliament does not have to debate or vote on the treaty, and Government controls the House of Commons timetable, so members have been unhappy with the limit to which they therefore can be involved. Parliament also cannot make amendments to the treaty, as it will already have been signed.

This toing and froing over four years now has clearly shown that members are keen to see more of a role in shaping agreements rather than having the power to prevent their ratification.

This Government has a stronger hand and so this Bill may not make it happen but these issues will not go away and as more trade deals will be forthcoming, the Government should remember that there is an MP wishlist with three things on it:

1. Giving Parliament a role setting the negotiating mandate for trade negotiations
2. Debating trade agreements and
3. Approving their ratification.

As Chair of the International Trade Committee said in the debate last week: “One of the things we know from the little interaction we have had with negotiators is that it is much better for them to know what Parliament is thinking; it strengthens their hand in negotiations to understand what they might get through Parliament at the end of the day.”