House of Commons Report on Trade Remedies – Why it Deserves Serious Consideration

The House of Commons International Trade Select Committee has today published its report on the provisions in the Trade Bill and the Customs (Cross Border Trade) Bill that set up the post Brexit regime for trade remedies.

In an earlier blog  I explained the Government’s proposals and made a number of suggestions as to how they could be improved. I am glad to say that the Committee – to which I gave evidence – has agreed with many of the suggestions I made.

The Committee starts by noting that the Bills are sparse on a number of detailed questions about the operation of the new regime. Many important details are to be filled in by regulations subject to negative resolution, i.e. not voted on in Parliament unless an objection is raised.  The Government is asked to explain why the negative resolution procedure is appropriate.

The Committee rightly, in my view, expresses alarm about the possibility that, unless a withdrawal agreement is reached, the new regime will need to be up and running by March 2019.  Given the uncertainty about when – and even if the UK will be operating a new regime, recruitment of scarce expertise is likely to be very difficult until the uncertainty clears: and no senior appointments have yet been made.

The Committee rightly points out the importance and political sensitivity of the work of the TRA and recommends that the appointment of the chair be approved by the Committee and the CEO subject to pre-appointment hearings.

The Committee agrees with my view that the split in responsibilities in the authority is broadly right: the TRA is to establish whether the conditions for trade remedies are made out, the Secretary of State to take the final decision. However, it also agreed with my view that the TRA should not be able to refuse trade remedies on “economic interest” grounds: any such decision should be made by a politician who is directly accountable to Parliament.

However it did not pick up on my suggestion that the “public interest” test that the Secretary of State can also apply should be set out in more detail, not least so as to dispose of possible arguments as to whether the Secretary of State is entitled (for example) to consider the wider diplomatic context when deciding whether to accept a TRA recommendation to impose remedies.

The Committee also agrees that the appeal mechanism and standard of review by the court should be set out in the Act and not left to the executive to decide by secondary legislation. It accepted that a court should be able to look at the merits of the TRA’s analysis (though it does not pick up my qualification that merits review is not the right approach for “public interest” decisions by the Secretary of State).

The Committee’s report is a welcome and thoughtful contribution to the debate on trade remedies after Brexit. Its recommendations deserve serious consideration by Government. Unfortunately, the delays to the Bills – widely thought to be due to the Government’s wish to avoid any vote on staying in a customs union with the EU – are likely to mean that the Bills are passed in haste: if so, they will be repented at leisure.

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