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Trade Act 2021

Contents

Schedules

Schedule 1: Restrictions on devolved authorities

  1. 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
  1. 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
  1. 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
  1. 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 powers. 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
  1. 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
  1. 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 legislation.
Meaning of devolved competence
  1. 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.
Interpretation
  1. Paragraph 9 defines "Northern Ireland devolved authority" for the purpose of the Schedule.

Schedule 2: Regulations under Part 1

  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.
  2. 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
  1. 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).
  2. 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
  1. 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).
  2. 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).
  3. 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

  1. Schedule 3 modifies the test for executive competence of the devolved authorities.
  2. 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.
  3. Paragraphs 2 and 3 make equivalent provision in respect of the Government of Wales Act 2006 and the Northern Ireland Act 1998.
  4. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. The Secretary of State may publish guidance to which the TRA must have regard when exercising its functions. 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.
  7. 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

  1. 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

  1. 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.

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