The UK has not had an independent trade policy since it joined the European Economic Community in 1973, and the landscape of world trade has changed dramatically since then. This section outlines the existing governance structures of UK trade policy that were in place after the EU referendum and the attempts by a range of non-state actors to re-define these since 2016. Table 1, above, outlines the actors that comprised the governance structure of trade policymaking in the UK during the period of Conservative rule covered by this article.

This governance structure is where we see the consensual aspect of new constitutionalism. The Conservative Government were able to manufacture democratic legitimacy for their post-Brexit trade policy through the re-design and operation of this policymaking architecture. As the following discussion demonstrates, the UK’s post-Brexit trade policy is part of a trend, witnessed elsewhere, where we have seen ‘the internal redistribution of power away from the legislature and toward the executive’ (Sassen 2014: 121). At the same time, the efforts of the ‘trade democracy’ campaign, formally launched in 2017, have helped contribute to raising awareness of the significance of trade as an issue in the UK.

Historically, it was customary practice for the UK government to put international treaties before parliament after they had entered into force. Then in 1924, a constitutional convention was adopted, known as the Ponsonby Rule, whereby international treaties would be placed before parliament. This practice was then formally codified in the 2010 Constitutional Reform and Governance (CRAG) Act, which requires the executive to put any international treaties, together with an explanatory memorandum, before parliament for 21 sitting days before ratification (Besly and Goldsmith 2019: 182). This extremely limited system of parliamentary scrutiny of any post-Brexit international agreements, has resulted in concern over the democratic legitimacy of the restoration of the UK’s independent trade policy. It allows little scope for input on either the agreed objectives before trade negotiations take place, or during the process of the negotiations themselves (Trade Justice Movement 2023: 9). As for the point at which a trade agreement has been agreed, under the terms of the CRAG Act, there is no option for a direct parliamentary vote; rather all that is possible is that the House of Commons can delay ratification (Fowler 2018).

As a result, in the period after the EU referendum, several trade unions and CSOs, who had been part of the campaign against TTIP in the UK, began to raise concerns over the lack of democratic accountability of the UK’s post-Brexit trade policy. Many of these are part of the Trade Justice Movement (TJM), which is a network of organisations that campaign for a trade system that works in the interests of people and the environment. Of these, War on Want and Global Justice Now (GJN) were two of the most active campaign groups (Garcia 2020: 351).

Democratic input and the trade bill

These organisations have sought to influence the direction of the UK’s post-Brexit trade policy by participating in consultations organised by the Department for International Trade (DIT) and the ITC. The first major opportunity arrived with the publication by DIT of a white paper entitled ‘Preparing for our future UK trade policy’ in October 2017. It promised an inclusive approach to both trade policymaking and future trade negotiations, whereby all stakeholders and the wider public throughout the UK would be able to contribute (UK Government 2017: 22). The white paper was, however, thin on any specific details of how the governance structures would be designed to ensure the realisation of such an inclusive approach. There was an opportunity for stakeholders to provide feedback on the white paper by the deadline of 6 November 2017. GJN led an organised email campaign calling for a more democratic approach to trade policymaking, which resulted in 60,000 submissions to the consultation. It was, therefore, a surprise when then Secretary of State for International Trade, Liam Fox, announced the publication of the Trade Bill on 7 November 2017, the day after the end of the consultation period. Nick Dearden, director of GJN, expressed the concerns of many of the stakeholders who had engaged in the consultation by suggesting that Liam Fox had ‘shown utter contempt for the public and parliament by publishing the Trade Bill before the ink is even dry on tens of thousands of responses to his own consultation’ (Global Justice Now 2017).

This organised participation in the consultation on the white paper was the precursor to the launch in parliament by TJM of its ‘trade democracy’ campaign on 21 November 2017. The central message they sought to articulate was that ‘to be consistent with fundamental democratic principles, trade negotiations must be opened up to legislative and public scrutiny’ (Trade Justice Movement 2017: 2). The main aim of the campaign was to lobby for changes to the Trade Bill to achieve these objectives. There was support for the campaign from opposition parties at Westminster.

Ahead of the second reading of the Trade Bill, a petition organised by GJN, which received over 265,000 signatures, calling for more democratic trade policymaking was submitted to DIT (Dearden 2017). In the House of Commons, Liam Fox argued that the bill did not cover any future trade deals that the UK might negotiate, and that consultation measures would allow stakeholders to express their views on these. However, he did not go as far as promising parliamentary oversight and the Labour Party tried, unsuccessfully, to put down an amendment to the bill expressing the views of the ‘trade democracy’ campaign. During the committee stage, actors involved in TJM, including GJN and the Fairtrade Foundation, submitted written evidence to the Public Bill Committee highlighting the need for changes to the processes for scrutiny of UK trade deals.

The campaign for ‘trade democracy’ was then extended to include a much wider range of actors, uniting business, trade unions and CSOs. Their participation in a series of inquiries organised by the ITC had revealed the essence of a mutually agreed position on the issue. This resulted in an informal alliance led by TJM, Unite the Union, the Confederation of British Industry (CBI), and the International Chamber of Commerce (UK). In May 2018, they launched a document outlining their vision for trade policymaking in the UK, which argued that a ‘modern governance model needs to put a stronger emphasis on consensus building and accountability, to develop trust, and enable decisions to be made in a more inclusive and transparent manner’ (Trade Justice Movement 2018). As Garcia (2020: 355) convincingly argues, this was an important development given that most business groups in the UK had previously been supportive of the TTIP negotiations.

When the bill came back to the Commons in July 2018, Liam Fox argued that the Trade Bill itself, was only relevant to the continuation of existing EU trade agreements, and that as a result legislation in this area was not required. Instead of putting promises for greater parliamentary scrutiny into legislation, Fox said the aim would be to create a more formalised structure for stakeholder engagement, via the creation of a Strategic Trade Advisory Group (STAG) (Hansard 2018).

Members of the House of Lords then raised concerns over the role for parliamentary scrutiny during their debates on the Trade Bill. During the report stage in the House of Lords, the government were defeated on an amendment calling for the requirement that parliament would have a vote on any new post-Brexit trade deals. Eventually the Conservative Government decided not to put the amended bill to a vote in the Commons. As a result, it was not considered before the general election in December 2019, which curtailed the parliamentary session.

In March 2020, the Trade Bill then returned in the new parliament (which saw the Conservative Party enjoy a majority of 80 seats) without the amendment that had been previously supported in the House of Lords. This time a rebel Conservative MP, Jonathan Djanogly, tabled an amendment ahead of the bill’s third reading in the Commons. The new clauses included a requirement that parliament would need to both approve the negotiating directives before trade negotiations begin and vote on any agreed deal. It also called for the consultation of the devolved authorities and that socio-economic impact assessments of any trade deal should be conducted before the start of negotiations. Despite securing limited support from some Conservative MPs, the amendment was voted down. In a similar fashion to the previous parliament, the House of Lords then voted through amendments that called for a greater role for parliament in the negotiation of trade deals, and highlighted concerns over the impact of trade agreements on food and environmental standards, the NHS, and public services more broadly. After a series of ‘ping-pong’ between the Commons and the House of Lords, the Trade Bill was passed without any of these central elements of trade democracy.

During the debate in the House of Lords, the Conservative Government did issue a commitment (known as the Grimstone rule) to allow both a debate on the negotiating objectives of a trade deal and a further debate before any trade deal is ratified, subject to there being sufficient parliamentary time available (Horne 2021). In his speech, Lord Grimstone also referred to the important scrutiny work conducted by relevant select committees in both Houses of Parliament (Hansard 2021). However, concerns have been raised in this regard following the experience of negotiating FTAs with New Zealand and Australia (Trade Justice Movement 2023). The ITC itself, in a report, noted that despite the Grimstone rule the Government ‘has at times shown a reluctance to meet the spirit, if not the letter, of those commitments’ (International Trade Committee 2022: 23). For example, after criticism over the lack of time for parliamentary scrutiny, a debate in the lower chamber on both the UKAFTA and the UKNZFTA eventually took place on 14 November 2022, but this was only a general discussion rather than a substantive debate (Webb 2023: 10). In sum, what this detailed discussion of the passage of the Trade Bill demonstrates, is the consistent refusal by the Conservative Government to cede executive power over trade policy to the legislature, which is a key dynamic within the process of new constitutionalism (Gill and Cutler 2014: 7).

The devolved administrations

Another governance issue for trade policymaking in the UK has been the role of the devolved administrations. They can express their views to government, via the Joint Ministerial Committee, but they have no formal role in the negotiation or ratification of trade deals (Garcia 2023: 2499). However, several areas impacted by FTAs, such as health and social care and agriculture, forestry and fisheries are devolved policy matters. As a result, the Scottish Government (2021: 88) has argued that ‘the UK Government should seek our agreement on priorities and the pursuit of its trade policy, as it can dramatically affect devolved policies, such as food standards’. These concerns were crystallised in discussions relating to the UKAFTA and UKNZFTA. A letter from Scottish Rural Affairs Secretary, Mairi Gougeon, to the UK Minister, suggested that both these deals, by improving access to the UK market for agricultural exporters from Australia and New Zealand, who have lower costs and food standards, would threaten the interests of Scottish farmers and food producers (Gougeon 2022). Similarly, the Welsh Government (2018: 19) published a policy paper on trade, which argued that the ‘UK Government must respect devolution and not seek to impose policy that cuts across devolved areas’.

Civil society and business groups

Beyond the scrutiny powers of parliament and the devolved administrations, a key element of the ‘trade democracy’ campaign was the demand for mechanisms to allow non-state actors to be involved in the policymaking process. The response, described below, demonstrates the insights from new constitutionalism, whereby dissenting voices are co-opted ‘by means of participation in safely channelled areas’ (Gill 2014: 41).

In April 2019, alongside the launch of its STAG, DIT created sectoral and thematic Expert Trade Advisory Groups (ETAGs). Membership included representatives from academia, trade unions, business, and CSOs. By July of the following year, it was revealed that ETAG members, who were being consulted on preliminary trade talks with the United States, had been asked to sign non-disclosure agreements (Kelso 2020). In what appeared to some members as a directly related development, DIT then announced a review of its approach to stakeholder engagement in August 2020, which resulted in the creation of 11 new, business-focused, Trade Advisory Groups (TAGs), with only the existing ETAG focused on financial services surviving the restructure.Footnote 1

The STAG met for the final time in June 2022 before it was also replaced by new structures for stakeholder engagement following the absorption of DIT into the Department of Business and Trade (DBT). These include the Trade and Sustainable Development Domestic Advisory Group and the UK TCA Domestic Advisory Group. The former is specifically tasked with helping to ensure that, in the UK’s trade deals with non-EU partners, the sustainable development, labour and environment chapters are implemented. The latter, meanwhile, is focused on allowing non-state actors to share their views on the implementation of the TCA. A Civil Society Roundtable also meets infrequently with the relevant minister. Winters (2024: 8) suggests that the main purpose of this revised structure of stakeholder engagement, implemented by the Conservative Government, has been to transmit information from the government to non-state actors and that as a result they cannot be understood as providing scrutiny in any meaningful sense.

Board of trade

Another important plank of the UK trade policymaking architecture is the Board of Trade. This has a long history as a committee of the Privy Council and was reconstituted in 2017 as an advisory body to the government. In August 2023 it was then relaunched with an exclusive focus on supporting the growth of UK exports. Membership of the Board of Trade includes relevant members of the government with the current Secretary of State for Business and Trade acting as President. In addition, it appoints advisers and, much like the TAGs, business representatives dominate. Analysts have argued that a reformed Board of Trade could help to improve the scrutiny of UK trade policymaking. For example, Winters (2024: 21) suggests that it should become independent of the government and have ‘broad representation among trade stakeholders including representatives from major UK business organisations, trade unions, devolved governments, SMEs, and senior experts in trade and regulation’.

In sum, this section has demonstrated that despite the wide-ranging engagement and campaigning of CSOs and business representatives, we have not seen any meaningful changes to the trade policymaking process in the UK. As anticipated by the framework of new constitutionalism, the formal structures for conducting trade policymaking in the UK, ensure that the executive retains a very dominant position. It took four years for the Conservative Government to pass the Trade Bill and during this period it consistently blocked any attempts to democratise the policymaking process. The next section of the article explores the democratic consequences of the first completely new trade deals agreed by the UK in the post-Brexit era.