Overview of the Act
- The Trade Act provides key measures that are required as the UK Government develops its trade policy for the UK now it has left the European Union (EU). These measures include:
- A power to ensure that the UK can implement procurement obligations that arise from the UK acceding to the Agreement on Government Procurement (GPA) in its own right and not as a member state of the The GPA is a plurilateral agreement within the World Trade Organization (WTO) framework. It mutually opens government procurement markets and seeks to address trade barriers among its parties. This power allows the Government and devolved authorities to implement changes to domestic law which are and will be necessary for the UK to meet and enforce obligations arising from its status as an independent party to the GPA.
- A power to assist with the implementation of UK trade agreements with partner countries with which the EU had signed trade agreements as at 31 January This power allows the Government and devolved authorities to implement changes to domestic law which are and will be necessary for the UK to meet obligations flowing from these agreements.
- Provisions establishing a new body, the Trade Remedies Authority (TRA), to deliver the new UK trade remedies framework, and to enable the TRA to provide advice, support and assistance to the Secretary of State in connection with the conduct of international disputes, other functions of the Secretary of State relating to trade and functions of the TRA. The TRA may also provide advice, support and assistance in relation to international trade and trade remedies to others as it considers
- A power to appoint members to the Trade and Agriculture Commission (TAC), and a duty to seek advice from that Commission under section 42 of the Agriculture Act 2020 on whether measures in certain free trade agreements applicable to trade in agricultural products are consistent with the maintenance of UK levels of statutory protection in relation to animal or plant life or health, animal welfare, and the
- A power for HM Revenue and Customs (HMRC) to collect information on behalf of the Government to confirm the number of exporters of goods and services there are in the UK, to enable the Government to identify those exporters for trade promotion
- A power to establish a data sharing gateway between HMRC and other public and private bodies, so that those bodies, including the Department for International Trade, can discharge their public functions and access relevant data for research, monitoring and evaluation.
International trade agreements – maintaining trade arrangements with other countries
- The EU trade agreements that the UK participated in solely through its membership of the EU no longer apply to the UK following the end of the transition period. The Government has sought to ensure continuity in the effects of these trade and investment relationships as far as possible by working to replicate predecessor EU agreements.
- The Trade Act provides the Government and the devolved authorities with the power to make the changes to domestic legislation that are necessary to ensure that these agreements can be fully implemented. This implementation power can only be used to implement international trade agreements with countries with which the EU already had signed trade agreements by 31 January 2020. The power cannot be used to implement a free trade agreement with the USA or China.
Trade Remedies Authority
- Trade remedies measures protect domestic industries against injury caused by unfair trading practices, such as dumping and subsidies, and from unforeseen surges in imports. Investigations, decisions and monitoring of trade remedies measures were performed by the European Commission on behalf of all Member States when the UK was a member of the The Trade Act establishes a UK body – the Trade Remedies Authority (TRA) – to ensure the UK can continue to provide a safety net to domestic industries now that the UK has left the EU.
- The Act establishes the TRA as a non‐departmental public body. It is responsible for conducting trade remedies investigations under a statutory framework provided by the Taxation (Cross-border Trade) Act 2018, and for making impartial recommendations to the Secretary of State.1
- Measures in the Act also require the TRA, upon request, to provide advice, support and assistance to the Secretary of State in connection with the Secretary of State’s trade-related functions, international trade disputes, and the TRA’s functions. This provision also allows the TRA to provide advice, support and assistance to others as it considers appropriate in relation to international trade and trade remedies.
Trade and Agriculture Commission
- Measures in the Trade Act put the Trade and Agriculture Commission on a statutory
- Section 42 of the Agriculture Act 2020 places a duty on the Secretary of State to report on whether the measures in certain free trade agreements applicable to trade in agricultural products are consistent with maintaining UK levels of statutory protection in relation to animal or plant life or health, animal welfare, and the environment.
- The Trade Act empowers the Secretary of State to appoint members to an expert committee named the Trade and Agriculture Commission, to provide advice under section 42 of the Agriculture Act It places the Secretary of State under a duty to seek advice from the TAC in this respect and to lay any advice received before Parliament, to aid transparency and Parliamentary scrutiny for new free trade agreements.
- The Trade Act also provides for administrative matters relating to the TAC, and for reviews of the TAC’s continued operation at least every three years.
- Other measures in the Trade Act allow HMRC to collect data on behalf of the Government to confirm the number of exporters of goods and services in the UK and allow the Government to identify those exporters for trade promotion purposes.
- The Trade Act also permits HMRC to share data with other bodies so that they can fulfil their public functions related to trade. This power provides access to information which the Government and the TRA need to carry out functions that were previously carried out by the European Commission. That information will inform the Government in designing and monitoring trade policy, including conducting trade disputes, and assist the TRA in investigating trade remedy cases. It also enables HMRC to share data with international organisations that oversee the world trade system (for example the WTO).
- These data sharing powers are subject to strict safeguards under the Act, the Commissioners for Revenue and Customs Act 2005 and the Data Protection Act 2018, ensuring appropriate protection and use of the data.
- Equivalent data sharing powers were enacted through sections 1 to 3 of the Trade (Disclosure of Information) Act 2020 (DOI Act), which received Royal Assent in December 2020 to facilitate data sharing prior to the end of the Transition Period. Section 4(1) of the DOI Act contains provision for the expiry of sections 1 to 3 of that Act. The expiry of these sections is subject to the Secretary of State being of the opinion that an Act resulting from the Trade Act is passed which contains provisions that have the same effect as, or similar effect to, sections 1 to 3 of the DOI Act.
- If the Secretary of State is of this opinion, the Secretary of State must, by regulations made by statutory instrument, provide for sections 1 to 3 of that Act to expire at the time that the ‘corresponding provisions’ come into force to any extent.
Territorial extent and application
- Section 17 sets out the territorial extent of the Trade Act. The extent of an Act can be different from its Application is about where an Act produces a practical effect rather than where it forms part of the law.
- The Trade Act extends and applies to the whole of the UK. In addition, repeals and amendments made by the Trade Act have the same territorial extent as the legislation that they are repealing or amending.
- The UK Parliament does not normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly without the consent of the legislature concerned. It is also the practice of the Government to seek the consent of the devolved legislatures for provisions which would alter the competence of those legislatures or of the devolved administrations in Scotland, Wales and Northern Ireland.
Commentary on provisions of Act
Part 1: Implementation of international trade agreements
Section 2: Implementation of international trade agreements
- International trade agreements are agreements between two or more countries aimed at reducing the barriers to trade in goods or services between them. The UK was signed up to many international trade agreements with other countries through its membership of the EU, and this continued throughout the transition period.
- The Government’s policy has been to seek continuity in the UK’s existing trade relationships following the UK’s departure from the EU. To achieve this, it has worked to establish a UK trade agreement with each existing partner country based, as closely as possible, on maintaining the effects of the trade agreement that that country already had with the EU.
- Although the Government’s policy intention is to ensure continuity as far as possible of the effects of the UK’s current trading arrangements, the new UK-partner country agreements that are implemented using this power will be legally distinct from the original EU-partner country agreements on which they are based. It may be necessary to amend the text of the previous EU agreements, for example so that the new agreements can work in a UK legal
- Before an international trade agreement can enter into force, the parties to that agreement must ensure that the agreement is implemented domestically, to avoid breach of the agreement on entry into force. This means they must ensure their domestic legislative framework is consistent with the commitments within the trade agreement. It is a convention within the UK that an international treaty is not ratified until it has been Not all obligations within a trade agreement require a change to the law. It is envisaged that the main area where a change to UK law is required, for the purposes of the international trade agreements in the scope of this Act, is in implementing the procurement obligations of these international trade agreements and mutual recognition agreements.
- Now the UK has left the EU, the ECA 1972 has been repealed, but the effects of sections 2(1) and 2(2) were preserved for the transition Following the end of the transition period the Government needs a legislative framework that enables it to implement obligations flowing from international trade agreements which the UK is making with countries with which it had trade agreements via its membership of the EU in domestic legislation.
- As a general rule, the European Union (Withdrawal) Act 2018 preserves in UK law the EU law existing at the point at which the UK left the EU, and allows it to be amended to make it work in a UK context following the end of the transition period. In most cases, the implementation of any already existing obligations within these new UK-partner country trade agreements will have been preserved by the operation of the European Union (Withdrawal) Act 2018 and the powers under it.
- However, not all obligations in EU-partner country trade agreements had been fully implemented by the EU in EU law (or by the UK implementing EU obligations into UK law) by the end of the transition period. In such cases, the European Union (Withdrawal) Act 2018’s preservation provisions, and its powers to correct deficiencies in retained EU law arising from the UK’s exit from the EU, do not assist. Section 2 of the Trade Act is therefore needed to ensure that these trade agreements can be fully implemented within UK law. The Government expects that these obligations will primarily relate to procurement, mutual recognition (as a consequence of transitioning Mutual Recognition Agreements) or in respect of enforcement or compensation provisions should any dispute or other issues arise.
- It is also possible that adjustments may be required to ensure that the new UK-partner country trade agreements work outside the original EU context. If implementing those adjustments requires a change to UK law, section 2 provides a vehicle to make those legislative changes to ensure that the UK is not in breach of its international
- In addition, it is important that UK-partner country agreements remain operable and up to date following the end of the transition period. Where appropriate changes to the agreement are necessary, it is important that these can be implemented This could include, for example, implementing decisions made by a joint committee of the parties set up under a trade agreement or implementing the results of an arbitration/alternative dispute resolution decision.
- To ensure that the UK’s trade agreements with EU partner countries can be fully implemented, section 2 gives the Government and devolved authorities the power to make regulations to implement non-tariff provisions in any international trade agreements that the UK makes with partner countries, provided that those countries had signed a trade agreement with the EU before 31 January 2020. Section 2 can be used to implement provisions in the agreement that are mandatory or discretionary in character.
- The section 2 power allows for provisions of trade agreements to be implemented in the UK through secondary legislation made under the affirmative resolution procedure. If, for example, a trade agreement requires countries to treat businesses from their respective countries equally when they bid for government procurement contracts, this must be reflected in the domestic legislative framework of both countries to enable that obligation to be met by each. The Government and devolved authorities could use the section 2 power to make secondary legislation to introduce any appropriate changes.
- Where continuity UK-partner country agreements need ratifying (which means a form of formal indication that a state intends to be bound by the agreement), they will be subject to Parliamentary scrutiny in accordance with the Constitutional Reform and Governance Act 2010.
- The types of agreement that are in scope of this section are ‘international trade agreements’ signed by the UK. The types of agreements within scope of the definition of “international trade agreements” are a) free trade agreements (as defined in section 5(1) – see paragraph 55 below) and b) other international agreements which are not free trade agreements, but which mainly relate to These other agreements which ‘mainly relate to trade’ include, but are not limited to, ancillary agreements, bilateral procurement agreements and mutual recognition agreements on product conformity assessment.
- Subsection 2(3) provides that the power cannot be used to implement one of the UK’s free trade agreements unless the other signatory/ies already had a signed free trade agreement with the EU immediately before 31 January 2020. Subsection 2(4) similarly provides that the power cannot be used to implement other international trade agreements not falling within the definition of a “free trade agreement” unless the other signatory/ies already had a signed international trade agreement (whether in the form of a free trade agreement or otherwise) immediately before 31 January 2020.
- Subsections (5) to (8) provide substantive restrictions on which trade agreement provisions can be implemented using the section 2(1) Subsection (5) provides that section 2 can only be used to implement international trade agreements in a way that is consistent with maintaining UK publicly-funded clinical healthcare services. ‘UK publicly-funded clinical healthcare services’ is defined in subsection (12).
- Subsections (6) and (7) further provide that section 2 can only be used to implement international trade agreements in a way that is consistent with maintaining UK levels of statutory protection in listed areas, including human, animal or plant life or health; animal welfare; environmental protection; employment and labour; data protection; and the protection of children and vulnerable adults online.
- The section 2 power will be used only to implement non-tariff Tariff provisions – that is, the elements of a trade agreement that set tax and duties on imports and exports – are addressed separately in the Taxation (Cross-Border Trade) Act 2018. Subsection (8) specifically provides that regulations made under subsection (1) may not make provisions that could be made by regulations under section 9 of that Act. Section 9 allows regulations to be made to give effect to preferential tariff rate arrangements between the UK and the government of a country or territory outside the United Kingdom.
- Subsection (9) establishes what sort of provision may be made by regulations under subsection (1). Regulations may (among other things): modify retained EU law (as defined in the European Union (Withdrawal) Act 2018) including primary legislation that is retained EU law and retained direct EU legislation; confer functions on the Secretary of State, or any other person, including conferring a discretion; provide for the delegation of functions (other than law-making functions); and provide for civil penalties. Subsection (9) does not allow for regulations to make or extend criminal offences, charge fees, amend primary legislation other than retained EU law, or create new public bodies.
- Subsection (10) makes the power in subsection (1) subject to a sunset This means that five years after the end of the transition period the power will cease to have effect. However, subsections (10)(b) and (11) provide that this period can be extended by the Government on review, with the approval of both Houses of Parliament (see Part 4 of Schedule 2 for procedural requirements), for further periods of up to 5 years at a time.
Section 3: Free trade agreements and genocide
- Section 3 ensures that a debate and vote in the Commons would happen following a tiered process starting with the responsible Commons Committee publishing a report which states that there exist credible reports of genocide in the territory of a country with which we are proposing a new bilateral free trade agreement. The Secretary of State would respond to the Committee in writing and at that point the Committee could insist on a Parliamentary debate and would set out the wording of a motion to be moved in the Commons. The Secretary of State would be obliged to make arrangements to debate and vote on the motion. A take note debate would also take place in the Lords following a similar tiered process if the responsible Lords Committee published an equivalent report.”
Section 4: Regulations: devolved authorities and general provision
- Section 4(1) provides for different types of provision that could be made by regulations under sections 1 and 2 where needed, for example consequential provisions, or transitional or savings provisions. The section also gives effect to Schedules 1, 2 and 3, which provide for how regulations under sections 1 and 2 can be made. These Schedules are discussed further below at paragraphs 105 to 132.
Section 5: Interpretation of Part 1
- Section 5 sets out how certain terms within Part 1 of the Trade Act should be
- Amongst these definitions, section 5(1) defines an “appropriate authority” as a Minister of the Crown or a devolved authority for the purpose of making regulations under section 1 (implementation of the GPA) and section 2 (implementation of international trade agreements). “Minister of the Crown” is defined in section 16. Section 5(1) also defines ”devolved authority” as the Scottish Ministers, the Welsh Ministers or a Northern Ireland
- Section 5(1) defines “free trade agreement” by reference to provisions in GATT and GATS which concern regional trade agreements. Specifically, the subsection refers to the requirements in GATT and GATS to notify WTO members when parties have decided to enter into a regional trade agreement (see GATT Article XXIV:7(a)and GATS Article V:7(a)).
Therefore, the term “free trade agreement” means an agreement which triggers the notification requirement under those provisions.
- Under GATT, this covers an agreement to enter into a customs union or a free-trade area or an interim agreement leading to the formation of a customs union or a free-trade area, as defined in the GATT. For these purposes, in broad terms, a customs union means where two or more customs territories become one customs territory. Such customs unions have two main features. One is that duties and other restrictive regulations of commerce (except those expressly permitted) are eliminated with respect to substantially all the trade between those customs territories, or at least with respect to substantially all the trade in products originating in such territories. The other is that substantially the same duties and other regulations of commerce are applied by each of the members of the customs union to trade with third countries.
- A free-trade area under GATT broadly means a group of two or more customs territories in which the duties and other restrictive regulations of commerce (except those expressly permitted) are eliminated on substantially all the trade between the territories making up the area in products originating in those territories.
- Regional trade agreements notifiable under GATS Article V:7(a) are known as economic integration agreements. These liberalise trade in services between the parties to the agreements, and must have substantial sectoral coverage and provide for the absence or elimination of substantially all discrimination between the parties in the sectors
- Section 5(2) provides for references in Part 1 of the Act to being a “signatory” to an international trade agreement to be read, in addition to signature, as also covering a party doing anything that would amount to a consent to be bound by the agreement as a matter of international law.
- Section 5(3) defines what is meant by a reference in Part 1 to a draft of regulations being laid before each House of Parliament and before the Scottish Parliament, the Senedd Cymru, and the Northern Ireland Assembly, respectively.
- Section 5(4) explains that references in Part 1 of the Act to anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 (directly effective Treaty rights etc.) includes modifications of the rights, powers, liabilities, obligations, restrictions, remedies or procedures concerned, as well as the rights etc. themselves.
Part 2: Trade Remedies Authority
Section 6: The Trade Remedies Authority
- This section establishes a new non-departmental public body, the
- Subsection (2) introduces Schedule 4, which contains further provisions regarding the governance and accountability of the TRA.
- Subsection (3) introduces Schedule 5, which makes provision about schemes for the transfer of staff in connection with the establishment of the TRA.
Section 7: Provision of advice, support and assistance by the TRA
- This section sets out the circumstances in which the TRA can apply its expertise more widely in relation to international trade and trade remedies.
- It provides that, when requested to do so, the TRA must provide the Secretary of State with advice, support and assistance in connection with the conduct of international trade disputes, the Secretary of State’s trade-related functions, and the TRA’s Before making such a request, the Secretary of State is required to consult the TRA and to have regard to the TRA’s expertise and the need to protect its operational independence and impartiality.
- The TRA may also provide such advice, support and assistance as it considers appropriate to others in relation to international trade and trade remedies.
Part 3: The Trade and Agriculture Commission
Section 8: Trade and Agriculture Commission
- Section 8 provides that the Secretary of State may appoint members to the TAC, and that the purpose of the TAC is to provide advice under section 42 of the Agriculture Act 2020. This advice concerns whether, and to what extent, new free trade agreement measures applicable to international trade in agricultural products are consistent with maintaining UK statutory protections in relation to animal and plant life or health, animal welfare, and the
- Subsection 3 provides that when appointing members to the TAC, the Secretary of State must have regard to the desirability of ensuring that the members collectively have expertise in UK animal and plant health standards, UK animal welfare standards, UK environmental standards and international trade law and policy.
Section 9: Trade and Agriculture Commission: advisory functions
- Section 42 of the Agriculture Act 2020 places a duty on the Secretary of State to report on whether the measures in certain free trade agreements applicable to trade in agricultural products are consistent with maintaining UK levels of statutory protection in relation to animal or plant life or health, animal welfare, and the environment.
- Subsection 9(2) of the Trade Act amends section 42 of the Agriculture Act 2020 to impose a duty on the Secretary of State to request advice from the TAC on these matters, except in relation to human life or health. This advice will be used to inform the section 42 It also requires the Secretary of State to publish the request for advice and any accompanying guidelines, and to lay any advice received pursuant to such a request before Parliament before the section 42 report (ie before laying the relevant free trade agreement before Parliament under Part 2 of the Constitutional Governance and Reform Act 2010).
- Subsection 9(4) amends the Agriculture Act 2020 to provide for a review of the operation of the TAC at least once every three years, the first review of which is to take place on or before 11pm on 31 December 2023. It also provides for the Secretary of State to make regulations repealing section 9’s amendments to the Agriculture Act 2020 via the affirmative resolution procedure, so long as such regulations do not come into force before 11pm on 31 December
Section 10: Trade and Agriculture Commission: further provision
- Section 10 makes provision about administrative matters relating to the TAC. It provides that TAC members are not to be regarded as servants or agents of the Crown.
- It also ensures that the TAC is provided with the necessary resources to provide its advice, including to form a secretariat, and enables the Secretary of State to provide for the payment of expenses to a member of the TAC incurred in relation to the preparation of the TAC’s
Section 11: Trade and Agriculture Commission: repeal
- This clause empowers the Secretary of State to repeal the provisions relating to the TAC if the duty to seek advice under section 42 of the Agriculture Act is This would need to be done via a statutory instrument using the draft affirmative resolution procedure; that is to say, the TAC cannot be removed without agreement from Parliament.
Part 4: Trade information
Section 12: Collection of exporter information by HMRC
- This section introduces a new function for HMRC, namely, to collect information on behalf of the Government which will assist the Government in identifying companies, partnerships and sole traders that export goods and services.
- Section 12(1) creates a new function for HMRC to request information from any person in order to assist the Secretary of State to establish the number of exporters of goods and services in the UK and to be able to identify those exporters for trade promotion Compliance with such a request is entirely voluntary and the Act does not provide for the imposition of any sanctions in the event of non-compliance.
- Section 12(2) defines export of goods and services as supply to a person who is outside of the United Kingdom.
- Section 12(3) provides the Treasury with the power to specify in regulations the type of information to be collected and how it will be requested, whether in the tax return or some other method of collection.
- Section 12(4) provides that regulations made under subsection (3) can modify (i.e. amend or repeal) primary This power is needed so that amendments can be made to the tax Acts, as necessary, in order to allow corporation and personal tax returns to be amended to include the request for exporter information.
- Section 12(5) provides that any regulations made under subsection (3) which amend or repeal an Act of Parliament are subject to the affirmative Subsection (6) provides that any other regulations made under subsection (3) are subject to the negative procedure.
Section 13: Disclosure of information by HMRC
- Following the UK’s exit from the EU and the transition period, several bodies will need to have access to HMRC data to enable them to carry out functions relating to trade which were previously fulfilled by the European Commission. For example, the Department for International Trade and the TRA require information to conduct trade disputes on behalf of the UK or impose trade remedies. Access to the information is also required in order to produce trade statistics and for trade research and analysis purposes which can both inform the development of evidence-based trade policy and be used to monitor and evaluate its effectiveness. Section 13 allows HMRC to share data with those bodies in order that they can fulfil such functions.
- This provision is needed in addition to the disclosure of information power in section 25 of the Taxation (Cross-border Trade) Act 2018 because that power is limited to matters related to customs duty purposes, which does not cover the full scope of the Government’s activities.
- Section 13(1) allows HMRC to share data with public or private bodies in order that they can fulfil their public functions as they relate to trade. This includes powers to share data, when needed, with international organisations that oversee the world trade system (for example the WTO) as well as with other departments, including the Cabinet Office, and the devolved
- Section 13(2) provides a non-exhaustive list of functions connected with the border which are part of wider Minister of the Crown functions relating to trade, in particular those of the Minister for the Cabinet Office.
- Section 13(3) ensures that information can only be used by the recipient for the purpose for which it was disclosed by HMRC and prohibits any onward sharing of the data beyond the bodies with which sharing has been agreed unless expressly permitted by HMRC Commissioners. Permission can be granted on an individual disclosure basis or on a more general basis, where ongoing disclosure is required for the same purpose and with the same organisation. These restrictions mirror the restrictions in the Commissioners for Revenue and Customs Act 2005.
- Section 13(4) applies the penalties under section 19 and 20 of the Commissioners for Revenue and Customs Act 2005 in respect of any unauthorised sharing of information received under this power.
- Section 13(5) confirms that this data sharing section does not limit or constrain data sharing powers in the Commissioners for Revenue and Customs Act 2005 or in any other enactment or rule of law. In effect this means that any restrictions on the sharing of data under this provision are limited to the scope of this Act.
- Section 13(6) confirms that nothing in the section permits the disclosure of information which is not also permitted under the Data Protection Act 2018 or the Investigatory Powers Act 2016.
Section 14: Disclosure of information by other authorities
- Having left the EU, Government departments with trade functions (in particular the Department for International Trade and Cabinet Office) need to have access to data held by other public authorities to assist them to carry out their functions relating to trade. For example, information is required by the Cabinet Office so that, through its Border and Protocol Delivery Group, it can analyse and promote efficiencies in the flow of traffic, goods and services in and out of the United Section 14 allows specific public authorities to share data with Government departments with trade functions in order that they can fulfil those functions.
- Section 14(1) allows specific public authorities to share data for the purpose of facilitating the exercise by a Minister of the Crown of the Minister’s function as they relate to trade. In particular, this section will enable data sharing with the Department for International Trade and the Cabinet Office. The data sharing power is permissive so the public authority sharing the information must satisfy itself that sharing the data is for the purpose relating to trade. Section 14(3) lists the specific public authorities who are able to disclose information under section 14(1).
- Section 14(2) provides a non-exhaustive list of functions connected with the border which are part of wider Minister of the Crown functions relating to trade. Listing these functions will enable the specific public authorities to more readily satisfy themselves that these functions connected with the border are functions for which disclosure would be permitted under section 14(1).
- Section 14(4) ensures that information can only be used by the recipient for the purpose for which it was disclosed, that is, to facilitate the exercise by a Minister of the Crown of the Minister’s functions relating to trade (or, if the information has been further disclosed under section 14(5) to another public authority, to facilitate the exercise of that public authority’s functions relating to trade). Functions in relation to trade include the functions listed in section 14(2).
- Section 14(5) provides a power enabling the recipient to further disclose the information if it receives the consent of the public authority that disclosed the information under section 14(1). Permission can be granted on an individual disclosure basis or on a general basis. The recipient of information under section 14(5) is subject to the restrictions on use in section 14(4).
- Section 14(6) confirms that this section does not limit or constrain data sharing powers in any other enactment or rule of In effect this means that any restrictions on the sharing of data under this provision are limited to the scope of this Act.
- Certain information held by specific public authorities are subject to constraints on To enable sharing of this information, section 14(7) provides a general disapplication of these restrictions. As a result, disclosure under this section does not breach any obligation of confidence owed by a person disclosing information, or any other restriction on the disclosure of information. This means that any information held by the specific public authorities can be disclosed, should the purpose in section 14(1) be satisfied.
- Section 14(8) confirms that nothing in this section permits the disclosure of information which is not also permitted under the data protection legislation (principally the Data Protection Act 2018 and the GDPR) or the Investigatory Powers Act 2016.
- Section 14(9) provides the Minister of the Crown with the power to add or remove public authorities from the list of specified public authorities in section 14(3) who can disclose information under subsection (1). Subsection (10) provides that any regulations made under section 14(9) are subject to the affirmative procedure.
Section 15: Offences related to disclosure under section 14
- This section provides that an offence is committed where a person discloses information in contravention of section 14 which relates to a person whose identity is specified in the disclosure, or can be deduced from it. Section 15(2) sets out the defence for a person charged with an offence under this section. Section 15(3) sets out that prosecution for an offence under this section may only be brought in England and Wales with consent of the Director of Public Prosecutions, and may only be brought in Northern Ireland with the consent of the Director of Public Prosecutions for Northern Ireland. Section 15(4) sets out the penalties which may be imposed where a person is found guilty of an offence.
- Section 15 was amended to aid interpretation and confirm what is meant for the purposes of this Act by the term “devolved authority”.
Part 5: General
Section 16: Interpretation
- Section 16 sets out the general interpretative provisions for the Act, including definitions of
“devolved authority”, “Minister of the Crown” and “modify”.
Section 17: Extent
- Section 17 provides that the Act extends to England and Wales, Scotland and Northern
Section 18: Commencement
- Section 18 sets out the commencement provisions for the Act. It provides that Part 5 comes into force on the day of Royal Assent, and that the remaining provisions come into force at the time(s) appointed by a Minister of the Crown by statutory instrument.
Section 19: Short title
- Section 19 establishes that the short title of this Act is the Trade Act
Schedule 1: Restrictions on devolved authorities
- The Schedule describes the circumstances in which a devolved authority (defined in section 5 as the Scottish Ministers, Welsh Ministers or a Northern Ireland department) can use the powers in sections 1 and 2 to make regulations.
No power to make provision outside devolved competence
- Paragraph 1 provides that a devolved authority may not make provision under sections 1 or 2 unless the provision is within the devolved authority’s devolved competence. Devolved competence is defined in paragraphs 6 to 8 of the Schedule (see paragraph 111 below).
Requirement for consultation in certain circumstances
- Paragraph 2 sets out the requirement for the devolved authorities to consult the Government prior to making regulations in certain circumstances. These circumstances are where regulations under sections 1 or 2 were commenced prior to the end of the transition period, or where regulations under section 2 make provision about any quota arrangements or are incompatible with such quota arrangements. Quota arrangements are defined in sub- paragraph (3).
Requirement for consent where it would otherwise be required
- Paragraph 3 sets out that consent of a Minister of the Crown is required if a devolved authority is making a provision using the powers in sections 1 or 2 and the provision would otherwise require consent if it were being made under other That could be where the relevant devolved legislature’s legislative powers were subject to a consent requirement, or where the devolved authority would normally require consent to make such a provision via secondary legislation. This requirement for consent will not apply if the devolved authority already has power to make such provision using secondary legislation without needing the consent of the Minister of the Crown.
Requirement for joint exercise where it would otherwise be required
- Paragraph 4 sets out that, where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the powers in sections 1 or 2.
Requirement for consultation where it would otherwise be required
- Paragraph 5 requires consultation with the Government on legislation made by a devolved authority in the exercise of the powers in sections 1 or 2, where the devolved authority would normally be required to consult with the Government when making those kind of changes in
Meaning of devolved competence
- Paragraphs 6 to 8 define devolved competence for the purposes of exercising the power in sections 1 or 2. The definition of “legislative competence” for the purposes of exercising these powers disapplies the normal restriction on the devolved legislatures’ competence which prevents them from legislating in a way that is incompatible with EU law. This disapplication is necessary to enable devolved authorities to make all necessary regulations under this power in devolved areas. This is because exercise of these powers will inevitably require some changes that would be incompatible with EU law and therefore would be outside the normal legislative competence of the devolved legislatures.
- Paragraph 9 defines “Northern Ireland devolved authority” for the purpose of the
Schedule 2: Regulations under Part 1
- Part 1 of the Schedule provides that the powers to make regulations under Part 1 of the Act are exercisable by statutory instrument, and makes corresponding provision for the devolved authorities and for a Minister of the Crown acting jointly with a devolved authority.
- Parts 2, 3, 4 and 5 of the Schedule provide for scrutiny by the UK Parliament and the devolved legislatures of regulations made under sections 1 and 2.
Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone
- Paragraph 2 provides that the negative procedure applies to regulations made by a Minister of the Crown or a devolved authority acting alone under section 1(1).
- Paragraph 4 provides that the affirmative procedure applies to regulations made by a Minister of the Crown or a devolved authority acting alone under section 2(1).
Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly
- Paragraph 3 provides for the negative procedure to apply to regulations made jointly by a Minister of the Crown and a devolved authority under section 1(1).
- Paragraph 5 provides for the affirmative procedure to apply to regulations made jointly by a Minister of the Crown and a devolved authority under Section 2(1).
- Part 4 of the Schedule provides for scrutiny by the UK Parliament of regulations made under section 2(10)(b) to extend the time during which the section 2 power may be exercised. The affirmative procedure applies to such regulations.
Schedule 3: Exceptions to restrictions in the devolution settlements
- Schedule 3 modifies the test for executive competence of the devolved
- Paragraph 1 makes provision in relation to the existing limit in section 57 of the Scotland Act 1998 (as amended by the European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act 2020). It provides that the constraint on modification of retained EU law in that section does not apply to the making of regulations under sections 1 or 2.
- Paragraphs 2 and 3 make equivalent provision in respect of the Government of Wales Act 2006 and the Northern Ireland Act 1998.
- Paragraph 4 provides that the restrictions on the devolved executives making secondary legislation that is incompatible with EU law found in section 57(2) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 and section 24(1)(b) of the Northern Ireland Act 1998 do not apply to regulations made under sections 1(1) and 2(1).
Schedule 4: The Trade Remedies Authority
- This Schedule sets out further provision on the composition of the TRA, established by section 6, and how it is to operate. Much of its content is self-explanatory.
- The Schedule makes detailed provision for the membership and staffing of the TRA, and how the terms and conditions of its members and employees (including remuneration) are to be determined.
- The Secretary of State is responsible for appointing non-executive members, including a Chair. The Chair is responsible for appointing executive members, including a Chief Executive. The appointment of the Chief Executive is subject to the approval of the Secretary of State. The Secretary of State may also appoint the first Chief Executive, but only in certain circumstances.
- The Secretary of State will be responsible for determining remuneration and terms and conditions of appointment for non-executive members, who are not employees of TRA. The Chair will be responsible for determining remuneration and terms and conditions of employment of employees who are executive members, which will be subject to the approval of the Secretary of State. For other employees who are not executive members, the TRA will determine their remuneration and terms and conditions of employment.
- The TRA will be funded by the Secretary of State. It will be required to keep proper records and accounts, and to provide a report on its activities to the Secretary of State every financial year. The report, which includes a statement of accounts, must be laid before Parliament.
- The Secretary of State may publish guidance to which the TRA must have regard when exercising its Before doing so, the Secretary of State must consult the TRA and must also have regard to the TRA’s expertise, independence and impartiality. The Secretary of State may not publish guidance in relation to specific trade remedies investigations.
- The Schedule also amends various pieces of existing legislation so as to apply their provisions to the TRA. These include the Freedom of Information Act 2000 and the Equality Act 2010.
Schedule 5: Transfer Schemes
- This Schedule contains provisions enabling the Secretary of State to create staff transfer schemes in connection with the establishment of the TRA, including making provision which is the same as, or similar to, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations). This has enabled the TRA to be fully staffed and operational for the end of the transition period.
Schedule 6: Trade and Agriculture Commission: Public Authorities Legislation
- Schedule 6 amends various pieces of existing legislation so as to apply their provisions to the TAC. Among others, these include the Public Records Act 1958 and the Freedom of Information Act 2000.
- Section 18 provides for the commencement of the provisions in the Trade Act. The general provisions in Part 5 will come into force on the day on which the Act becomes an Act of Parliament. The specific provisions in Parts 1, 2, 3 and 4 will come into force on days appointed by a Minister of the Crown by commencement regulations.
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