The Great Brexit Trade Takeover: Unilateral Powers Assigned to Liam Fox
Trade Secretary to be single-handedly responsible for defending UK against unfair trading practices as Trade Bill awaits passage
Trade Secretary Liam Fox has broken a pledge to MPs to have an ‘independent’ UK ‘trade defence regime’ in place for 29th March. The Trade Bill that will legally birth the new body has stalled.
This month DIT Minister George Hollingbery quietly assigned its entire ambit to Fox himself, on a ‘temporary’ basis, as part of Brexit ‘contingency’ measures, but with zero Parliamentary oversight.
DIT has spent approximately £3.5 million on creating a ‘shadow’ Trade Remedies Authority to oversee post-Brexit trade, currently employing around 90 civil servants, however the legislation is not in place to allow the new body to start work.
This month DIT Minister George Hollingbery quietly assigned its entire ambit to Fox himself, on a ‘temporary’ basis, as part of Brexit ‘contingency’ measures, but with zero Parliamentary oversight. DIT’s new law was ushered in overnight via Statutory Instrument.
On March 6th when the legislation ‘came into force’ DIT Minister George Hollingbery MP wrote to notify Angus MacNeil MP, chair of the International Trade Select Committee in a letter since published on their website.
Hollingbery wrote: “I have decided to put in place contingency arrangements that will temporarily confer trade remedy functions on the Secretary of State, allowing the Department to operate trade remedy functions ‘in-house’ until the Trade Remedies Authority is legally established. Yesterday, on the 5th March, I laid the relevant secondary legislation and I note that it came into force today”.
Livin’ on a Prayer
“The UK trade remedies system might start life without adequate parliamentary scrutiny.”Steve Peers, Essex Professor of EU Law, Human Rights and World Trade
Hollingbery had created the new law under a controversial aspect of the EU Withdrawal Act that allows the Government to amend Acts of Parliament via a ‘negative’ Statutory Instrument – without scrutiny by MPs. A ‘negative’ Statutory Instrument can be challenged for a period of 40 days after it comes into force via a technique known as a ‘prayer motion’, to annul it.
The Hansard Society blogged last year that Parliament has no real power over whether MPs’ ‘prayer motions’ are heard. Their blog explains: “Early Day Motions (EDMs), which an MP must table in the form of a ‘prayer’ to object to a negative SI, are motions for which no fixed parliamentary time is allocated.”
“Whether an MP’s objection to an SI is ever debated will therefore still lie almost entirely in the hands of the government, not the House of Commons. In the last full parliamentary session (2016-17), for example, 23 prayer motions were tabled of which only 10 were granted time for debate.”
Steve Peers Professor of EU Law, Human Rights and World Trade at the University of Essex, commented on the process “Trade remedies are economically and legally important, and it is unfortunate that the UK trade remedies system might start life without adequate parliamentary scrutiny.”
In the last full parliamentary session … 23 prayer motions were tabled of which only 10 were granted time for debate.Hansard Society Blog, on scrutiny of post-Brexit laws, 11 July 2018
Online Detectives: Scrutiny MPs Found Government’s Trade Defenders on Linked-In
“The DIT did not seem to know that you were in post. They told us that you weren’t in post.”Angus MacNeil MP, chair of the International Trade Committee in Parliament
Hollingbery’s letter follows warnings from Select Committee MPs as early as last May that the DIT would be off-track to deliver the new Trade Remedies Authority mandated in the Trade Bill.
The Committee also warned about oversight, that a regulator ‘independent of government’ would be crucial: “We consider that appointments of the Chair of the TRA should be conditional upon the approval of this Committee, and that this should be set out in statute,” the MPs recommended.
However, the chief executive designate of a newly-created shadow Trade Remedies Authority, Claire Bassett, was appointed by DIT in January without consulting or notifying MPs, who found out about it via Linked-In.
“The Department has spent £3.5 million, approximately, in the setup of the Trade Remedies Authority to date.”Claire Bassett, Chief Executive Designate of shadow Trade Remedies Authority,
MacNeil opened a Parliamentary scrutiny session with Bassett and DIT Representatives on 16 January by saying: “we have had quite an effort to get the TRA to come in front of us.”
“It was only through LinkedIn that we found out for definite last week. Do the DIT and the TRA talk to each other very much? One is telling us one thing, and LinkedIn is telling us another.”
Bassett replied: “We have certainly talked to each other an awful lot in the 11 days or so that I have been in post. I think I have had interaction with the DIT pretty much every day, which has been a really key part of it. …”
MacNeil responded: “The DIT did not seem to know that you were in post. They told us that you weren’t in post.”
Bassett returned: “Well, the DIT were, as a system, aware that I was in post, because they appointed me. Perhaps Amanda wants to cover that in more detail.”
Amanda Brooks, the Government’s DIT lead for Trade Remedies Accessing Controls, answered that Fox “recognised that Claire had only recently started in the role”, which she had then been in for 11 days.
“Trade remedies are a really important part of ensuring fair trade. That is the reality.”Amanda Brooks, DIT lead for Trade Remedies Accessing Controls
Brooks has, for the last two years, overseen the creation of the ‘shadow TRA’ that is employing Bassett.
Brooks said: “For me personally trade remedies are a really important part of ensuring fair trade. That is the reality. They are there as a safety net for businesses to ensure that, under free trade, rules are followed and enforced.”
During that session, Bassett explained that she felt the body was ‘ready for delivery’ on 29 March: “We have started building the systems that we will need for finance, IT and HR, and begun work on a communications plan and on how we ensure that we are properly accountable, particularly once we become independent.”
On recruitment: “In an ideal world we would have 129 people at the end of March. At the moment we are confident about 90.”
On spending, Bassett clarified: “The Department has spent £3.5 million, approximately, in the setup of the Trade Remedies Authority to date.”
MP Ranil Jayawardena raised the point that some MPs are hostile to the concept of an independent trade remedies authority altogether: “what do you make of the amendment that would stop the TRA being set up in the event of a no deal?”
Brooks replied at the time “I think the Government’s view on that is clear. We believe that an independent arm’s-length body is the best way for evidence-driven investigations to be completed, but clearly that is subject to the will of Parliament.”