Trade Bill

Baroness Kramer Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

Moved by

[Baroness Kramer]

78: Clause 6, page 4, line 25, leave out from “TRA” to end of line 28 and insert—
“(c) protect the TRA’s operational independence and its ability to make impartial assessments when performing its functions.”

[Baroness Kramer (LD) [V]]

My Lords, under the Bill, the UK’s current Trade Remedies Investigations Directorate, part of the Department for International Trade, will be replaced at the end of transition by the Trade Remedies Authority. Responsibilities that fell to the European Commission under the common commercial policy during the years of our membership will be ours to decide, but in this arena no one acts in a vacuum. The TRA powers in the Bill reflect three separate agreements of the WTO: the agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade, commonly known as the anti-dumping agreement; the agreement on subsidies and countervailing measures; and the agreement on safeguards.

However, how we position ourselves is not simple. The EU, for example, has in recent years made its own findings of significant distortions in exporting economies, and those decisions may be challenged in the dispute settlement proceedings of the WTO. Where will we in the UK position ourselves?

Our economy, whether the Government like it or not, is deeply interlinked with the EU economy, so that many actions against the EU will also encompass the UK. Some way will have to be found to co-operate with the EU, and, often, to synchronise trade remedies—or, frankly, businesses will be left in a completely impossible position. The European Commission has ongoing investigations in at least 20 cases, including multiple cases against China, the USA and India on goods ranging from steel and biodiesel to electric bicycles and tableware. It is also a complainant and, in other cases, a defendant in a number of cases in the WTO dispute resolution system that have consequences for the UK.

So it is crucial that the TRA is operationally independent and impartial in its assessments as it deals with complaints brought to it by industry or—I hope rarely—investigates concerns brought by the Secretary of State. But, if it is to have standing and credibility, it must be seen to be above international, electoral and party politics. Under the current Government, this is not easy, as illustrated by the article on “shaking up the state” in last week’s Financial Times. In discussing bodies such as the TRA, one of Boris Johnson’s allies is quoted as saying that

“Labour stuffed these bodies with their people; now it’s our turn.”

That is not an appropriate reputation for a body such as the Trade Remedies Authority.

I have done my best to trawl through this Bill, the Taxation (Cross-border Trade) Act 2018 and the raft of related SIs, but I have yet to find any unambiguous statement that the TRA is required to be operationally independent and impartial in its assessments. The Government might say that both are implied in clauses that deal with the behaviour of the Secretary of State towards the TRA. Those clauses include a “must have regard” in Part 2, and again in the “Guidance” paragraph of Schedule 4. However, |your Lordships will be aware that a “have regard” only sometimes has consequences. I have worked for years now with financial regulators who consider a “must have regard” as pretty light touch.

These concerns sit behind Amendments 78 and 114, and the first paragraph of Amendment 104, in my name and that of my noble friend Lady Bowles. They would make unambiguous the requirement for the TRA to be operationally independent and impartial. Amendment 79 is also in my name and that of my noble friend Lady Bowles. It approaches the issue from a different angle. It seeks to require proper resources and funding for the TRA and thereby assure its independence. My noble friend will expand on this issue.

The second two paragraphs of Amendment 104 tackle a rather different problem. I can read in the Bill that the Secretary of State can accept or reject a recommendation from the TRA on dumping, subsidisation or guarantees, but I am unclear whether the Secretary of State can vary a recommendation or act without a TRA recommendation. Could the Secretary of State accept one element of a recommendation and ignore another part? This is a genuinely probing amendment and I hope that the Minister can provide some absolute clarity, because the issue is fundamental. The role and authority of the TRA will be disclosed by his answer.

I turn to the amendments in the name of the noble Lord, Lord Lansley. I assume that Amendments 104A and 108A are essentially tidying-up amendments—my apologies if that is wrong, but that is how I read them. However, I am grateful to the noble Lord for tabling Amendment 105, which would go some way to deal with a serious flaw in the balance between Parliament and the Executive.

--- Later in debate ---

I hope I have been able to reassure noble Lords that government shares their concerns that the TRA should be an independent body and that the measures necessary to ensure that are already in place. I therefore ask them not to press their amendments.

[Baroness Kramer (LD) [V]]

My Lords, I thank the Minister for making it clear that the Secretary of State—

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I apologise. I think the noble Lord, Lord Lansley, would like to speak after the Minister. I got that message late.

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord, Lord Lansley, for that question. I have some skin in this game, because I was the author of the public appointments code in which these requirements appear. I shall certainly consider the point that he has raised and write to him about it, but, frankly, with no great confidence that I will agree with him when I do so.

[Baroness Kramer (LD) [V]]

When the noble Lord, Lord Grimstone, drew up that framework for public appointments, there was no way in which he could have anticipated this role, so I hope that he will look closely at the role of the TRA chair and listen closely to the noble Lord, Lord Lansley.

I was delighted to hear from the Minister that the Secretary of State cannot vary duties recommended by the TRA and cannot, without the TRA’s say-so, impose those duties. I appreciate that clarification.

I smiled at the thought that there might be “excessive steps” to protect the independence and impartiality of the TRA. It is hard to think of anything that would be excessive if it were to support those principles of independence and impartiality, so fundamental are they to the role.

Given the lateness of the hour, I beg leave to withdraw my amendment.

Amendment 78 withdrawn.