Trade Bill (HC Bill 122)

respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by the Welsh Ministers after consulting with a
Minister of the Crown, unless the regulations are, to that extent, made after
consulting with the Minister of the Crown.

(4) 5No regulations may be made under section 1(1) or 2(1) by a Northern Ireland
department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by a Northern Ireland department after
consulting with a Minister of the Crown, unless the regulations are, to that
10extent, made after consulting with the Minister of the Crown.

(5) Sub-paragraph (2), (3) or (4) does not apply if—

(a) the provision could be contained in an Act of the Scottish Parliament,
an Act of the National Assembly for Wales or (as the case may be) an
Act of the Northern Ireland Assembly, and

(b) 15there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.

(6) Sub-paragraph (2), (3) or (4) does not apply if—

(a) the provision could be contained in different subordinate legislation
made otherwise than under this Act by—

(i) 20the Scottish Ministers, the First Minister or the Lord
Advocate acting alone,

(ii) the Welsh Ministers acting alone, or

(iii) (as the case may be), a Northern Ireland devolved authority
acting alone, and

(b) 25there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.

Meaning of devolved competence

7 A provision is within the devolved competence of the Scottish Ministers if—

(a) it would be within the legislative competence of the Scottish
30Parliament if it were contained in an Act of that Parliament (ignoring
section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law
and retained EU law), or

(b) it is provision which could be made in other subordinate legislation
by the Scottish Ministers, the First Minister or the Lord Advocate
35(ignoring section 57(2) of the Scotland Act 1998 so far as relating to
EU law and section 57(4) and (5) of that Act).

8 A provision is within the devolved competence of the Welsh Ministers if—

(a) it would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the Assembly
40(ignoring section 108A(2)(e) of the Government of Wales Act 2006 so
far as relating to EU law and retained EU law but including any
provision that could be made only with the consent of a Minister of
the Crown), or

(b) it is provision which could be made in other subordinate legislation
45by the Welsh Ministers (ignoring section 80(8) of the Government of
Wales Act 2006).

9 A provision is within the devolved competence of a Northern Ireland
department if—

(a) the provision, if it were contained in an Act of the Northern Ireland
Assembly—

(i) would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998),
5and

(ii) would not require the consent of the Secretary of State,

(b) the provision—

(i) amends or repeals Northern Ireland legislation, and

(ii) would, if it were contained in an Act of the Northern Ireland
10Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
Act 1998) and require the consent of the Secretary of State, or

(c) the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority (ignoring
15section 24(1)(b) and (3) and (4) of the Northern Ireland Act 1998).

Interpretation

10 In this Schedule, a “Northern Ireland devolved authority” means the First
Minister and deputy First Minister in Northern Ireland acting jointly, a
Northern Ireland Minister or a Northern Ireland department.

Section 3(3)

20SCHEDULE 2 Regulations under Part 1

Part 1 Statutory instruments

1 (1) Any power to make regulations under Part 1 of this Act—

(a) 25so far as exercisable by a Minister of the Crown or by a Minister of
the Crown acting jointly with a devolved authority, is exercisable by
statutory instrument,

(b) so far as exercisable by the Welsh Ministers or by the Welsh Ministers
acting jointly with a Minister of the Crown, is exercisable by
30statutory instrument, and

(c) so far as exercisable by a Northern Ireland department (other than
when acting jointly with a Minister of the Crown), is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979 (SI 1979/1573 (NI 12)SI 1979/1573 (NI 12)) (and not by statutory
35instrument).

(2) For regulations made under Part 1 of this Act by the Scottish Ministers, see
also section 27 of the Interpretation and Legislative Reform (Scotland) Act
2010 (asp 10)2010 (asp 10) (Scottish statutory instruments).

Part 2 Scrutiny of regulations under sections 1(1) and 2(1)

Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone

2 (1) A statutory instrument containing regulations of a Minister of the Crown
5under section 1(1) or 2(1) is subject to annulment in pursuance of a
resolution of either House of Parliament.

(2) Regulations of the Scottish Ministers under section 1(1) or 2(1) are subject to
the negative procedure (see section 28 of the Interpretation and Legislative
Reform (Scotland) Act 2010).

(3) 10A statutory instrument containing regulations of the Welsh Ministers under
section 1(1) or 2(1) is subject to annulment in pursuance of a resolution of the
National Assembly for Wales.

(4) Regulations of a Northern Ireland department under section 1(1) or 2(1) are
subject to negative resolution within the meaning of section 41(6) of the
15Interpretation Act (Northern Ireland) 1954 as if they were a statutory
instrument within the meaning of that Act.

(5) This paragraph does not apply to regulations to which paragraph 3 applies.

Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly

3 (1) This paragraph applies to regulations of a Minister of the Crown acting
20jointly with a devolved authority under section 1(1) or 2(1).

(2) The procedure provided for by sub-paragraph (3) applies in relation to
regulations to which this paragraph applies as well as any other procedure
provided for by this paragraph which is applicable in relation to the
regulations concerned.

(3) 25A statutory instrument containing regulations to which this paragraph
applies is subject to annulment in pursuance of a resolution of either House
of Parliament.

(4) Regulations to which this paragraph applies which are made jointly with the
Scottish Ministers are subject to the negative procedure.

(5) 30Sections 28(2), (3) and (8) and 31 of the Interpretation and Legislative Reform
(Scotland) Act 2010 (asp 10)2010 (asp 10) (negative procedure etc.) apply in relation to
regulations to which sub-paragraph (4) applies and which are subject to the
negative procedure as they apply in relation to devolved subordinate
legislation (within the meaning of Part 2 of that Act) which is subject to the
35negative procedure (but as if references to a Scottish statutory instrument
were references to a statutory instrument).

(6) Section 32 of the Interpretation and Legislative Reform (Scotland) Act 2010
(laying) applies in relation to the laying before the Scottish Parliament of a
statutory instrument containing regulations to which sub-paragraph (4)
40applies as it applies in relation to the laying before that Parliament of a
Scottish statutory instrument (within the meaning of Part 2 of that Act).

(7) A statutory instrument containing regulations to which this paragraph
applies which are made jointly with the Welsh Ministers is subject to
annulment in pursuance of a resolution of the National Assembly for Wales.

(8) Regulations to which this paragraph applies which are made jointly with a
5Northern Ireland department are subject to negative resolution within the
meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 as
if they were a statutory instrument within the meaning of that Act.

(9) If in accordance with this paragraph—

(a) either House of Parliament resolves that an address be presented to
10Her Majesty praying that an instrument be annulled, or

(b) a relevant devolved legislature resolves that an instrument be
annulled,

nothing further is to be done under the instrument after the date of the
resolution and Her Majesty may by Order in Council revoke the instrument.

(10) 15In sub-paragraph (9) “relevant devolved legislature” means—

(a) in the case of regulations made jointly with the Scottish Ministers, the
Scottish Parliament,

(b) in the case of regulations made jointly with the Welsh Ministers, the
National Assembly for Wales, and

(c) 20in the case of regulations made jointly with a Northern Ireland
department, the Northern Ireland Assembly.

(11) Sub-paragraph (9) does not affect the validity of anything previously done
under the instrument or prevent the making of a new instrument.

(12) Sub-paragraphs (9) and (10) apply in place of provision made by any other
25enactment about the effect of such a resolution.

(13) In this paragraph, “enactment” includes an enactment contained in, or in an
instrument made under—

(a) an Act of the Scottish Parliament,

(b) a Measure or Act of the National Assembly for Wales, or

(c) 30Northern Ireland legislation.

Part 3 Scrutiny of regulations under section 2(8)(b)

4 A statutory instrument containing regulations of the Secretary of State under
section 2(8)(b) may not be made unless a draft of the instrument has been
35laid before, and approved by a resolution of, each House of Parliament.

Section 3(4)

SCHEDULE 3 Exceptions to restrictions in the devolution settlements

Scotland Act 1998

1 In section 57 of the Scotland Act 1998 (EU law and Convention rights) in
40subsection (5) (as inserted by paragraph 1 of Schedule 3 to the European
Union (Withdrawal) Act 2018) at the end of paragraph (b) but before the “or”

insert—

“(ba) to the making of regulations under section 1(1) or 2(1) of the
Trade Act 2018,”.

Government of Wales Act 2006

2 5In section 80 of the Government of Wales Act 2006 (EU law) in subsection
(8A) (as inserted by paragraph 2 of Schedule 3 to the European Union
(Withdrawal) Act 2018) at the end of paragraph (b) but before the “or”
insert—

“(ba) to the making of regulations under section 1(1) or 2(1) of the
10Trade Act 2018,”.

Northern Ireland Act 1998

3 In section 24 of the Northern Ireland Act 1998 (EU law, Convention rights
etc.) in subsection (4) (as inserted by paragraph 3 of Schedule 3 to the
European Union (Withdrawal) Act 2018) at the end of paragraph (b) but
15before the “or” insert—

“(ba) to the making of regulations under section 1(1) or 2(1) of the
Trade Act 2018,”.

Transitional exception

4 Section 57(2) of the Scotland Act 1998, section 80(8) of the Government of
20Wales Act 2006 and section 24(1)(b) of the Northern Ireland Act 1998, so far
as relating to EU law, do not apply to the making of regulations under
section 1(1) or 2(1).

Section 5

SCHEDULE 4 The Trade Remedies Authority

25Status

1 (1) The TRA is not to be regarded—

(a) as the servant or agent of the Crown, or

(b) as enjoying any status, immunity or privilege of the Crown.

(2) The TRA’s property is not to be regarded—

(a) 30as the property of the Crown, or

(b) as property held on behalf of the Crown.

Membership

2 (1) The TRA is to consist of—

(a) a Chair appointed by the Secretary of State,

(b) 35other non-executive members appointed by the Secretary of State,

(c) a chief executive appointed by the Chair with the approval of the
Secretary of State or, if the first Chair has not been appointed, by the
Secretary of State, and

(d) other executive members appointed by the Chair.

(2) The total number of members must not exceed nine.

(3) The Secretary of State must consult the Chair before appointing the other
non-executive members.

(4) The Secretary of State and the Chair must ensure, so far as practicable, that
5the number of non-executive members is at all times greater than the
number of executive members.

Terms of appointment and tenure of members

3 A person holds and vacates office as a member of the TRA in accordance
with the terms and conditions of the person’s appointment.

4 10The terms and conditions of a person’s appointment as a non-executive
member of the TRA are to be determined by the Secretary of State; but that
is subject to the following provisions of this Schedule.

5 The terms and conditions of a person’s appointment as an executive
member of the TRA are to be determined by the Chair with the approval of
15the Secretary of State; but that is subject to the following provisions of this
Schedule.

6 The terms and conditions of a person’s appointment may cover, among
other things—

(a) the period for which the person is to hold office;

(b) 20the person’s eligibility for re-appointment;

(c) circumstances in which a person’s membership may be suspended.

7 A person may resign from office as a non-executive member of the TRA by
notifying the Secretary of State.

8 A person may resign from office as an executive member of the TRA by
25notifying the Chair.

9 The Secretary of State may remove a person from office as a non-executive
member of the TRA if, in the opinion of the Secretary of State, the person is
unable or unfit to carry out the functions of the office.

10 The Chair may remove a person from office as an executive member of the
30TRA if, in the opinion of the Chair, the person is unable or unfit to carry out
the functions of the office.

Remuneration of members

11 The TRA must pay to non-executive members of the TRA such
remuneration as the Secretary of State may determine.

12 35The TRA must pay to executive members of the TRA such remuneration as
the Chair may determine with the approval of the Secretary of State.

13 The TRA must pay, or make provision for paying, to or in respect of any
person who is or has been a non-executive member of the TRA, such sums
as the Secretary of State may determine in respect of allowances, expenses
40and gratuities.

14 The TRA must pay, or make provision for paying, to or in respect of any
person who is or has been an executive member of the TRA, such sums as

the Chair may determine with the approval of the Secretary of State in
respect of pension, allowances, expenses and gratuities.

15 If a person ceases to be a non-executive member of the TRA and the
Secretary of State determines that the person should be compensated
5because of special circumstances, the TRA must pay compensation of such
amount as the Secretary of State may determine.

16 If a person ceases to be an executive member of the TRA and the Chair
determines with the approval of the Secretary of State that the person should
be compensated because of special circumstances, the TRA must pay
10compensation of such amount as the Chair may, with the approval of the
Secretary of State, determine.

A chief executive appointed by the Secretary of State

17 Paragraphs 18 to 23 apply in respect of a person who is appointed as chief
executive by the Secretary of State under paragraph 2(1)(c).

18 15The terms and conditions of a person’s appointment as chief executive are
to be determined by the Secretary of State; but that is subject to the other
provisions of this Schedule.

19 If the first Chair has not been appointed, a person appointed as chief
executive may resign from office by notifying the Secretary of State.

(ba) 20The Secretary of State may remove a person from office as the chief executive if—

(a) the first Chair has not been appointed, and

(b) in the opinion of the Secretary of State, the person is unable or unfit
to carry out the functions of the office.

21 The TRA must pay a person appointed as chief executive such remuneration
25as the Secretary of State may determine.

22 The TRA must pay, or make provision for paying, to or in respect of a person
who is or has been the chief executive such sums as the Secretary of State
may determine in respect of pension, allowances, expenses and gratuities.

23 If a person ceases to be the chief executive of the TRA at a time when the first
30Chair has not been appointed and the Secretary of State determines that the
person should be compensated because of special circumstances, the TRA
must pay compensation of such amount as the Secretary of State may
determine.

Staffing of the TRA

24 (1) 35The TRA may—

(a) appoint employees, and

(b) make such other arrangements for the staffing of the TRA as it
considers appropriate.

(2) The terms and conditions of appointment as an employee are to be
40determined by the TRA.

(3) The TRA may pay its employees such remuneration as the TRA may
determine.

(4) The TRA may pay, or make provision for paying, to or in respect of any
person who is or has been an employee of the TRA, such sums as the TRA
may determine in respect of pension, allowances, expenses or gratuities.

(5) In the Superannuation Act 1972 (“the 1972 Act”), in Schedule 1 (kinds of
5employment to which a scheme under section 1 of the 1972 Act can apply),
in the list of “Other Bodies”, at the appropriate place insert—

• “Trade Remedies Authority.”

(6) The TRA must pay to the Minister for the Civil Service, at such times as the
Minister may direct, such sums as the Minister may determine in respect of
10any increase attributable to sub-paragraph (5) in the sums payable out of
money provided by Parliament under the 1972 Act.

(7) Sub-paragraphs (1) to (4) apply in respect of employees that are not
executive members of the TRA.

Committees

25 (1) 15The TRA may establish committees, and any committee so established may
establish sub-committees.

(2) A committee or sub-committee so established is referred to in this Schedule
as a “TRA committee”.

(3) A TRA committee may consist of or include persons who are neither
20members, nor employees, of the TRA.

(4) The TRA must pay such allowances as it may determine to any person
who—

(a) is a member of a TRA committee, but

(b) is neither a member, nor an employee, of the TRA.

(5) 25The TRA must keep under review—

(a) the structure of the TRA committees, and

(b) the scope of each committee’s activities.

Procedure

26 The TRA may determine its own procedure and the procedure of any TRA
30committee (including quorum).

27 The validity of any proceedings of the TRA is not affected by a vacancy or
defective appointment.

Delegation of functions

28 (1) The TRA may delegate any of its functions to—

(a) 35a member of the TRA,

(b) an employee, or other member of staff, authorised for that purpose,
or

(c) a TRA committee.

(2) But a function may not be delegated to a committee that includes a person
40who is neither a member, nor an employee, of the TRA insofar as the
function could be exercised in relation to a specific trade remedies
investigation.

(3) Otherwise, a function is delegated under this paragraph to the extent, and
on the terms, that the TRA determines.

(4) In this Schedule “trade remedies investigation” means an investigation by
the TRA under provision made by or under Part 1 of the Taxation (Cross-
5border Trade) Act 2018.

Funding

29 The Secretary of State must pay to the TRA such sums as the Secretary of State
considers appropriate for the purpose of enabling the TRA to perform its functions.

Accounts and audit

30 (1) 10The TRA must—

(a) keep proper accounts and proper records in relation to them, and

(b) prepare a statement of accounts in respect of each financial year.

(2) The statement of accounts must comply with any directions given by the
Secretary of State with the approval of the Treasury as to—

(a) 15its content and form;

(b) the methods and principles to be applied in preparing it;

(c) the additional information (if any) which is to be provided for the
information of Parliament.

(3) The TRA must send a copy of the statement of accounts to the Secretary of
20State and the Comptroller and Auditor General as soon as reasonably
practicable after the end of the financial year to which it relates.

(4) The Comptroller and Auditor General must—

(a) examine, certify and report on each statement of accounts, and

(b) send a copy of each report and certified statement to the Secretary of
25State.

(5) The Secretary of State must lay before Parliament a copy of each such report
and certified statement.

(6) The chief executive of the TRA is to be its accounting officer.

(7) In this Schedule “financial year” means—

(a) 30the period beginning with the date on which the TRA is established
and ending with the second 31 March following that date, and

(b) each successive period of 12 months.

Annual report

31 (1) The TRA must prepare a report on the performance of its functions during
35each financial year.

(2) The report must include the statement of accounts in respect of that year.

(3) The report must be prepared as soon as reasonably practicable after the end
of the financial year to which it relates.

(4) The TRA must send the report to the Secretary of State.

(5) 40The Secretary of State must lay the report before Parliament.

Seal and evidence

32 (1) The application of the TRA’s seal must be authenticated by the signature
of—

(a) a member of the TRA, or

(b) 5an employee of the TRA authorised for that purpose.

(2) A document purporting to be duly executed under the TRA’s seal or signed
on its behalf—

(a) is to be received in evidence, and

(b) is to be taken to be executed or signed in that way, unless the
10contrary is shown.

(3) This paragraph does not apply to Scotland.

Supplementary powers

33 (1) The TRA may do anything which appears to it to be necessary or expedient
for the purpose of, or in connection with, the performance of its functions.

(2) 15Under sub-paragraph (1), the TRA may among other things—

(a) acquire and dispose of land and other property,

(b) enter into contracts, and

(c) accept gifts of money, land or other property.

Guidance

34 (1) 20In performing its functions, the TRA must have regard to guidance
published by the Secretary of State.

(2) Sub-paragraph (1) does not apply in respect of an ongoing trade remedies
investigation if the guidance is published during that investigation.

(3) Before publishing guidance, the Secretary of State must—

(a) 25consult the TRA, and

(b) have regard to the expertise of the TRA and to the need to protect—

(i) its operational independence, and

(ii) its ability to make impartial assessments when performing its
functions.

(4) 30In particular, the Secretary of State may not publish guidance in relation to
a specific trade remedies investigation.

Public records

35 In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act
1958 (definition of public records), at the appropriate place insert—

• 35“Trade Remedies Authority.”

Investigation by the Parliamentary Commissioner

36 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments
subject to investigation), at the appropriate place insert—

• “Trade Remedies Authority.”