Trade Bill

Lord Lansley Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Baroness, Lady Bennett. I shall speak to Amendments 28, 29 and 30, which are intended as probing amendments. I refer in passing to the report on the Trade Bill from the Select Committee on the Constitution, published in September of last year. The committee says at paragraph 11:

“We remain of the view that the Bill’s skeletal approach to empowering the Trade Remedies Authority is inappropriate.”


It goes on to say at paragraph 12:

“We recognise that there continue to be significant uncertainties regarding the UK’s trading relationships at the end of the Brexit transition period”,


which of course has now passed, and it concludes:

“However, it is not clear why, more than two years after the previous version of the Bill was introduced, the functions and powers of the Trade Remedies Authority cannot be set out in more detail in this Bill.”


Therefore, I gently nudge my noble friend the Minister to say, when he responds to Amendments 28, 29 and 30, what the intention behind the original Clause 6 was.

With Amendments 28 and 29, I seek in particular to focus on understanding better what limits might be appropriate to a request to the Trade Remedies Authority to provide advice on matters of international trade, and, with Amendment 30, to clarify the purpose of the initial consultation before proceeding to a request. At this stage, I should say that I am most grateful to the Law Society of Scotland for its assistance in briefing me and preparing these amendments.

With regard to Amendment 30, it is not immediately clear from the legislation why the Secretary of State would consult the Trade Remedies Authority under Clause 6(3) and how this is different from issuing the original request under subsection (1). I might be missing something but, if you are issuing a request, that seems a little odd. I am grateful to the Law Society of Scotland for raising this with me and, in turn, for the House this afternoon. Surely, if you make a request to the Trade Remedies Authority, you do not need to consult the authority beforehand on the nature of that request.

Can my noble friend clarify whether there is any distinction between the two actions, making it clear that the duty to consult in Clause 6(3) relates to framing or scoping a request to the Trade Remedies Authority, just so we can understand why it is appropriate to shape that request when, in fact, the Trade Remedies Authority is meant to be independent and impartial? By going through this process of consultation, I am slightly concerned that that impartiality and independence may be impugned or compromised.

Amendments 28 and 29 point to the fact that the Trade Remedies Authority has already existed, and exists in abstract, having been incorporated by reference in the Taxation (Cross-border Trade) Act 2018, although we are formally constituting it in the Trade Bill before us today. If it is the case that the Trade Remedies Authority is responsible for carrying out investigations and advising on remedies as set up under the cross-border trade Act, while it is an essential aspect of international trade, it is only one part of that. The proposed amendment therefore would ensure that requests for advice are limited to matters on which the Trade Remedies Authority is competent to advise, having regard to its remit and functions.

The purpose of this group of three amendments is simply to explore a better understanding from my noble friend and the Government through the department as to what the remit of the TRA should be and to ensure that the independence and impartiality of that body will not be infringed through the present drafting of Clause 6(3).

[Lord Lansley (Con) [V]]

My Lords, I am grateful for the opportunity to contribute to this debate. The amendments in this group all relate to the composition, functions and approach taken by the Trade Remedies Authority. I am very glad to follow my noble friend Lady McIntosh of Pickering. She rightly referred to the powers and approach set out in the Taxation (Cross-border Trade) Act 2018. I have to say equally gently that that is the answer to the points made by the Constitution Committee of this House—that they do not need to be set out in this legislation, because, way back when we first started considering the previous Trade Bill, as the noble Lord, Lord Purvis of Tweed, and I fondly remember, it was introduced at almost exactly the same time as the Taxation (Cross-border Trade) Bill. They were intended to proceed in parallel and are now entirely separate.

To some extent, that also gives a further reason why we should briefly consider at this stage the Trade Remedies Authority’s understanding that it has, in the form of the trade remedies investigation directorate of the Department for International Trade, been up and running, working on the transition review from the European Union and making recommendations relating to the imposition of countervailing, anti-dumping or safeguarding duties inherited from the European Commission. To that extent, we seek to influence not something new but something that has an ongoing role.

In this debate, I want to raise several issues. I hope that my noble friend on the Front Bench will not regard it as necessary to elaborate on all these issues now. If he wishes to write later, that is absolutely fine, but I do want to make one or two points.

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[Lord Lansley (Con) [V]]

My Lords, as the noble Lord, Lord Stevenson of Balmacara, said, this short debate follows on from the debate that we had in this House on the Trade (Disclosure of Information) Bill on 17 December. Like the noble Lord, Lord Stevenson, I am most grateful to the Minister for his letter of 4 January.

There are just two things that I want to say following on from that. The first is that I am grateful, but not surprised, that in his letter the Minister said that, although the wording in the amendments that we are now making to the Trade Bill varies slightly from the wording of the clauses in the Trade (Disclosure of Information) Act, the legal effect is exactly the same. I do not think we ever thought that the legal effect would be different. What we find somewhat surprising is that, to achieve the same effect at virtually the same time in two pieces of legislation, the wording is not the same. That was a slightly surprising aspect of the drafting that we were presented with when we saw the Trade (Disclosure of Information) Bill last month.

Secondly, I raised the question of what is meant by, and what is the purpose of, the amendments that put into the Bill the saving provision in Clauses 8 and 9 —that

“nothing in this section authorises the making of a disclosure which … contravenes the data protection legislation”

or aspects of the Investigatory Powers Act. The purpose of the government amendments is to ensure that, when these pieces of legislation and their constraints on disclosure are considered, Ministers can also take into account the powers conferred in this clause.

The Minister’s letter refers to the Supreme Court case of the Christian Institute and others v the Lord Advocate in 2016. I have had the chance to read the judgment and it does indeed refer to the situation where there is in effect, under legislative provisions such as the data protection legislation, a statutory gateway that allows those provisions to be escaped from in circumstances where there are powers for disclosure in other enactments. In the absence of these provisions, the data protection legislation and the Investigatory Powers Act might well make it very difficult for the necessary disclosures to be made in certain specific circumstances. Therefore, it allows for them to be seen together.

Paraphrasing, I think, the language of the Supreme Court, it is necessary for anyone wanting to understand the effect of this clause to have this legislation in one hand and the data protection law—indeed, I would add the Investigatory Powers Act—in the other. It does not tell you how any particular instance would be resolved but it does tell you that both must be considered together, and that is entirely reasonable.

The only issue that one is left with when one reads both the legislation and the Supreme Court judgment is that the clauses we are looking at do not say that the disclosures made by public authorities must be necessary and proportionate. Therefore, I think that it would finally close the gap and make matters very clear if the Minister would confirm that, where these disclosures are made, or indeed where further public authorities have information disclosed to them for their trade functions, the disclosures must be necessary and proportionate to meet those functions.

[Baroness Neville-Rolfe (Con) [V]]

My Lords, I welcome the government amendments, which are technical in nature but allow proper co-operation between HMRC and the devolved authorities. As I was not able to be in the House in person during debates on the Trade (Disclosure of Information) Act, I have probably not understood the purpose of Amendment 36A in the name of the noble Lord, Lord Stevenson of Balmacara—but I have a question that perhaps he or my noble friend the Minister could kindly respond to.

I always worry about the wisdom of giving a power to amend primary legislation by order, particularly on the collection or disclosure of information by HMRC, which seems to be the issue in Clause 7(4). As a former international retailer, I know how commercially sensitive such information is and how onerous ill-thought-out form-filling requirements can be. I want to make sure that the power could not be misused by the Executive—we have seen a certain amount of evasion of scrutiny during Covid. I want an assurance from the Minister, assuming that the power to amend primary legislation is retained in what is now being proposed, that the power would be used sensibly. If it disappears, then that would also meet my concern.

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Moved by

[Lord Lansley]

41: After Clause 10, insert the following new Clause—
“International disputes
In section 32 of the Taxation (Cross-border Trade) Act 2018 (regulations etc), subsection (3), at the end insert—“(d) regulations under section 15 (international disputes etc).””Member’s explanatory statement
This new Clause would amend the Taxation (Cross-border Trade) Act 2018 to require that, where the Secretary of State proposes tariff increases in pursuance of an international dispute (not as a trade remedy), such a regulation must be made subject to an affirmative procedure.

[Lord Lansley (Con) [V]]

My Lords, Amendment 41 in my name relates to the powers in the Taxation (Cross-border Trade) Act 2018, under which Ministers can impose import duties. Section 15 of that Act gives the power to impose tariffs in furtherance of an international dispute. Amendment 41 would require that a statutory instrument made under Section 15 of that Act be subject to the “made affirmative” procedure.

We had a debate on this in Committee. When the original Taxation (Cross-border Trade) Act went through, Section 15 was wrapped together with a number of others in the argument made by the Government—and, indeed, set out in the Explanatory Memorandum—that there would be frequent changes of detailed tariffs. While that is generally true in other sections of that Act, it carries no weight in relation to tariffs applied in international disputes, which are and should be few in number.

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[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for those comments. The Government will of course reflect on this debate. I perfectly understand the requirement for the annulment power, but I believe that both Houses of Parliament would wish to use that annulment power sensibly and sensitively, in light of the circumstances which might underlie it.

[Lord Lansley (Con) [V]]

My Lords, I am most grateful to all those who contributed to this short debate. It demonstrated the value, even at this late hour, of some of the additional issues brought out in the context of the scenarios and specific instances that my noble friend put in his response to the debate.

I think I have been inadvertently responsible for misleading the House. I intended to talk about parliamentary approval, but in doing so got carried away and talked about this House. Of course, this House would have no role. The regulations made under the Taxation (Cross-border Trade) Act, if “made affirmative”, would be subject to the approval only of the House of Commons.

Therefore, in response to my noble friend Lady Noakes, I make two points. First, we are accustomed, from time to time, to making amendments to Bills that run the risk of being declined by the other place on grounds of financial privilege. However, that does not mean that we never make such amendments and invite the Commons to think again. The second point that I should make to her is that, in this instance, the effect of the amendment would be to give the House of Commons—but not our House—the right to consider regulations made under this power.

That said, I do not resile from the view that sensitive matters can, none the less, be debated in Parliament, and it is not beyond the wit of Ministers and civil servants to ensure that, in explaining the choices that have been made in the regulation, they do not disclose information of value to those who would do us harm. That happens on many occasions and, in fact—even in the scenarios to which my noble friend refers—the choices we have made and why we have made them would very often not have been lost upon other parties in trade disputes. I do not resile from the view that because something is sensitive and important it should be debated in Parliament—in this instance, because it relates to what are effectively attacks, only in the other place.

None the less, the helpful response from my noble friend —who genuinely tried to explain why the Government took the approach they did, rather than what was set out originally in the Explanatory Memorandum—took us some way towards thinking about this matter in a way described by the noble Lord, Lord Stevenson of Balmacara. We may yet come back to this matter, but not during the passage of the Bill. I beg leave to withdraw the amendment.

Amendment 41 withdrawn.