New possibility to ask the Trade Remedies Investigations Directorate (TRID) to investigate need for a UK trade remedy where there is already an ongoing EU investigation

Sarah Lee QC

On 29 July 2020 the Department of Trade (DIT) announced a change in regulations expanding the TRID’s current powers to investigate whether or not UK trade remedy should be applied in cases of imports causing or threatening to cause injury to UK businesses.

The new investigations can be opened from 5 August 2020 and relate to imports already the subject of an existing EU investigation. The change is a step in the transition away from the EU’s exclusive competence to apply trade remedies benefiting industries in the UK and towards the UK’s sole responsibility for doing so from 1 January 2021 onwards.

Prior to 5 August 2020, the TRID had the power to commence investigations into whether existing EU measures should be replaced by the imposition of a UK remedy once the Brexit transition period ends on 31 December 2020.  So far the TRID has opened three such investigations – in February, March and July of this year. This most recent change allows the TRID, in addition, to open investigations into the possibility of imposing a trade remedy in respect of imports to the UK in cases where the EU has already commenced an investigation, but has not yet taken the decision to impose a remedy.

The TRID has been set up by the DIT as a temporary arrangement during the Implementation Period following the UK leaving the EU. From 1 January 2021, by which time the TRID’s functions will have become these of the Trade Remedies Authority (TRA), the TRA will be able to carry out not only these investigations, but also investigations into imports which have not been the subject of EU measures or of EU investigations. The TRA will be able to make recommendations that the Secretary of State imposes measures in respect of them where appropriate. The scope for trade remedies applying in the UK may well therefore increase with a UK focused Non Departmental Public Body looking specifically at applications made by those in the UK.

Trade remedies are aimed at preventing imported goods from being dumped on the UK market at prices below normal values (that is, below the normal cost of goods in their domestic market), or imports of subsidized goods, or a significant influx of imports of a particular product flooding the market. They are a familiar feature of the EU legal system and the ways in which the European Commission exercises these functions to prevent unfair trade practices are well-known.

The new mechanisms established by the UK will inevitably have certain differences, however. The UK’s system has been set up having looked not only at the EU’s legislation and practices, but at the relevant WTO agreements (the GATT, the Anti-Dumping Agreement, the Agreement on Subsidies and Countervailing Measures and the Agreement on Safeguards) also that from other jurisdictions, including Australia. One of the pre-condition tests that parties either applying for a measure or resisting one will have to address is whether it is in the economic interest of the UK or not to introduce a remedy after balancing the pros and cons of doing so. Detailed information is likely to be required.

The procedures relating to the investigations process and the systems set up to allow the review of the TRA’s decisions and appeals of decisions to the Upper Tribunal are all new. Businesses will therefore have to navigate the new requirements and the UK’s newly established procedures. The remedies that the TRA will be able to impose are anti-dumping duties or countervailing duties (which can be up to the lower of the dumping or subsidy margin, as the case may be, or the injury margin) or safeguard measures (that is, tariff increases or tariff rate quotas not targeted at a particular country) for a specified period.

Understanding the implementation of the Withdrawal Agreement in domestic law

Emily MacKenzie

As explained in a previous post, the entry into force on 31 January 2020 of the UK’s Withdrawal Agreement, following its ratification by both the UK and the EU, would not in and of itself have meant that the Withdrawal Agreement had effect in UK law. Rather, legislation was required to implement it.

This was done in the form of the European Union (Withdrawal Agreement) Act 2020 (“2020 Act”), which received royal assent on 23 January 2020.

The way that the 2020 Act implements the Withdrawal Agreement is complex.

For one thing, you can’t simply read the 2020 Act as a free-standing piece of legislation. For the most part, it amends an earlier Brexit statute, the European Union (Withdrawal) Act 2018 (“EUWA”). Whilst the EUWA as originally enacted made provision in anticipation of the UK leaving the EU on “exit day” (which was originally defined as 29 March 2019 in section 20(1), but which was subsequently altered by secondary legislation), this was before there was any treaty to implement. So it is the amendments introduced by the 2020 Act that give effect to the Withdrawal Agreement in domestic law. Therefore, you have to look both at a consolidated version of the EUWA[1] and at the other bits of the 2020 Act that stand alone to see how the Withdrawal Agreement has been implemented.

That issue aside, the new provisions are themselves complicated and the devil is in the detail. What follows is necessarily a very brief canter through the most important aspects.

If you only have a minute to spare, the basics are as follows. The Withdrawal Agreement provides for a “transition” (also called “implementation”) period that currently lasts until 31 December 2020. The Withdrawal Agreement basically provides for not much to change in that period: the vast majority of EU law will continue to apply in the UK. There are five key mechanisms by which the UK legislation seeks to implement both these transitional provisions in the Withdrawal Agreement and the rest of that Agreement:

  1. The European Communities Act 1972 (“1972 Act”) is “saved” for the implementation period. This allows EU law to continue to flow into domestic law for the time being. However, what flows in is a snapshot of EU law as it stood on 31 January 2020 and not any subsequent changes. The transitional provisions of the Withdrawal Agreement also now form part of the EU law that flows in.
  2. Domestic legislation that stems in some way from EU law (“EU-derived domestic legislation”) is also saved for the implementation period. This means that no domestic legislation falls simply because of withdrawal. But some “glosses” are applied, which aim to ensure that such legislation continues to function properly.
  3. At the end of the implementation period, EU law becomes domestic law (subject to some fairly extensive exceptions) and will be known as “retained EU law”. This retention includes both EU-derived domestic legislation and “direct” EU law, as well as any rights, powers, liabilities, obligations, restrictions, remedies and procedures that came in via the 1972 Act.
  4. A new “conduit” is created so that the provisions of the Withdrawal Agreement other than those addressing the implementation period can flow into UK law.
  5. There are extensive powers to make secondary legislation to deal with all sorts of other issues, including to remedy any “deficiencies” in domestic law arising out of withdrawal and to implement other aspects of the Withdrawal Agreement, such as the provisions setting out citizens’ rights.

If you have a bit more time, the rest of this post expands on the above. Continue reading

The final constitutional steps to withdrawal

Emily MacKenzie

At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?

Once the Withdrawal Agreement had been agreed in negotiations in October 2019, both parties to it – i.e. the UK and the EU –  had to complete the proper processes for ratifying it in accordance with their constitutional requirements. So what did those comprise? Continue reading

Brexit – Making Britain great again (and the UK more united)?

Alastair Sutton made presentations to the New Foreign Policy Society and to the Finnish-British Trade Association in Helsinki on 3 December 2019.  His speaking notes are here.

House of Commons briefing paper on Brexit questions in national and EU courts

Maya Lester QC

The House of Commons Library has published a briefing paper on Brexit issues arising in UK and EU courts. It summarises the cases from Miller onwards on the Brexit process, and on the way Brexit might impact on a number of areas of EU law (eg extradition, trademarks, citizenship rights).

UK parliamentary committee criticises post Brexit sanctions policy

Maya Lester QC

The House of Commons Foreign Affairs Committee has published a report on UK sanctions policy entitled ‘Fragmented and incoherent: the UK’s sanctions policy”. europeansanctions.com (Maya Lester QC and Michael O’Kane) submitted written evidence to the inquiry here and Maya Lester QC’s oral evidence is here.  In the Committee’s view:

  • The Government doesn’t have a clear strategy for a clear strategy for sanctions and little thought has gone into the UK’s priorities.  There should now be a major review and the UK should seize the opportunity to become a global leader in sanctions policy. The committee is “deeply concerned” that “so little high-level thought” appears to have gone into considering questions such as: what are the costs and benefits of divergence on key sanctions regimes, how can the UK make the most of its power in financial services, where do the UK’s interest most closely align with those of our key international partners, how we will influence their decision-making in future etc.  The review should consider overall strategic goals, policy planning and formation, implementation a and enforcement.
  • Sanctions policy, implementation and enforcement are fragmented across government – there should be a Senior Responsible Officer accountable to the National Security Council.  The NSC should designate sanctions strategy to be an urgent priority, allocate resources accordingly, and begin an urgent review of UK sanctions strategy “consulting both internal Government stakeholders and external experts” and report to Parliament by the end of 2019.
  • There should be a review of the effectiveness of OFSI before the end of 2019, as the Treasury Select Committee had recommended in March 2019, including the pros and cons of having a single body for design and implementation, and how OFSI can improve its engagement with private sector bodies on the front line of sanctions implementation.
  • The Government must adopt a clear view on whether the UK can impose Magnitsky sanctions (for gross human rights violations) while still an EU member state before the end of June, and should publish a list of people prevented from entering the UK.
  • The Foreign & Commonwealth Office should play a greater role in combatting money laundering, and should consider whether the EU’s test for ownership & control is sufficient in a Russia context.

As previously stated on the EU Sanctions blog, RUSI is currently engaged in a wide ranging and in-depth review of sanctions policy post Brexit, involving industry and legal experts, with sponsorship and input from Peters & Peters.

Could ministerial advice to the Queen to prorogue Parliament or to refuse assent to a Parliamentary Bill be challenged in the courts?

Paul Bowen QC

This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.  Strongly opposing views have been expressed as to the constitutionality of both these initiatives and of the proposed Government responses.  On one side the view has been expressed by highly eminent law Professors Finnis (emeritus), Brazier and Ekins, together with Sir Stephen Laws, former first Parliamentary Counsel, that these Parliamentary initiatives are somehow unconstitutional and the Government could respond by advising the Queen to either prorogue Parliament until after the Brexit date of departure or to withhold assent to any Parliamentary Bill that emerges as a result of such an initiative; or, in Prof. Finnis’ more recent suggestion, for the Lord Chancellor to refuse to even forward such a Bill for royal assent.  In his most recent post, Prof. Ekins suggests that it is ‘unconstitutional’ and ‘contrary to fundamental principles of parliamentary Government’ for a majority of MPs ‘to govern without forming a Government’. In the face of such action, he says, the Government would be acting ‘rationally’ by advising the Queen to prorogue Parliament or to withhold royal assent. Robert Craig has also argued that the Government may be justified in advising the Queen to withhold assent in these circumstances.  The other side of the debate is represented by a significant number of equally eminent academic lawyers including Professors Mark Elliott, Thomas Poole, Gavin Phillipson and Jeff King and by senior practitioners including Lord Pannick QC and Dinah Rose QC, who are all signatories to a letter set out in a letter to the Times on 3 April 2019.  Their view is that for the Government to advise the monarch to frustrate the will of the majority in Parliament in any of the ways suggested by Finnis et al is, to use Mark Elliott’s phrase, a ‘constitutional monstrosity’.

I strongly agree with the latter group, for all the reasons they give, and notwithstanding Professor Finnis’ most recent response to Professor Elliott.  I will argue that for the monarch to take either course of action in order to frustrate a majority of elected MPs in Parliament would be unconstitutional, whether she did so on the advice of the Prime Minister or not.  Moreover, for the Prime Minister to advise the Queen so to act would be unlawful and susceptible to challenge by way of judicial review.  While I recognise such a challenge would risk further ‘enemies of the people’ headlines it would be as nothing to the constitutional crisis that would be precipitated by the Queen either acting, or refusing to act, upon the Prime Minister’s advice.  Professor Finnis’ suggestion for avoiding this constitutional crisis – that the Lord Chancellor simply refuse to forward the Bill for royal assent, so the Queen is not confronted by this dilemma – sounds like a recipe for an executive putsch if allowed to become a precedent.  I suggest the Lord Chancellor has no discretion at all as to whether (Bennion, s 38), or when, to forward a Bill for assent, and – if he does – cannot exercise it for the purpose of frustrating Parliament’s will.

As to my first argument, there are four reasons why it would be unconstitutional for the monarch to take either course of action proposed by Finnis et al.  First, it would undermine the grundnorm of the British constitution, Parliamentary sovereignty, and would ‘reverse the result of the Civil war’, to use Lord Templeman’s graphic phrase in M v Home Office [1994] 1 AC 377.   Parliamentary sovereignty is enshrined in the final legislative outcome of the Civil War and the Glorious Revolution, s 1 of the Bill of Rights 1689:

That the pretended power of suspending of Laws or the execution of Laws by Regall authority without Consent of Parlyament is illegall. 

S 1 is given effect by the preamble to every Act of the UK Parliament:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: …

This preamble is modified for an Act passed under the Parliaments Act 1911 and 1949 by the House of Commons alone, but with equivalent effect: see s 4(1) of the 1911 Act.

So while in our constitutional monarchy an Act of Parliament is only enacted once the monarch has assented to it (s 1 Royal Assent Act 1967), the power to legislate is entirely Parliament’s.  The consent of Parliament (at least, of the elected Commons) is required for all ‘Laws’ and the monarch’s assent to a Bill that has passed both Houses of Parliament is a ‘constitutional formality’ (Lord Bingham in Jackson v AG [2006] 1 AC 262 at [10]) and her power to withhold assent ‘purely theoretical’ (Lord Collins in Barclay (No 1) at [80]).   The monarch has not withheld consent to a Bill since 1707 and it would be unconstitutional for her now do so other than, possibly, in a ‘near revolutionary’ situation (Bennion, s 38).  Nor, it would follow, could she prorogue Parliament to frustrate Parliament’s attempts to legislate.

Second, even if the Prime Minister advised her to act otherwise the Queen would be bound, by the principle of Parliamentary sovereignty, to respect the will of Parliament.  By s 1 Bill of Rights and the Parliament Acts the making of an Act of Parliament requires the consent of (at least) the elected Commons; it does not require the consent of the Government.  In practice, of course, it will usually be the Government that brings forward legislation and seeks the Queen’s assent.  It is only in extraordinary circumstances such as the present that any Bill would pass through Parliament in the teeth of Government opposition.  While there is a convention that the monarch acts upon the advice of her Ministers, that convention is a consequence of the constitutional principle that the Queen acts with the consent of Parliament, whose will the Prime Minister will usually embody as the head of a Government which has the confidence of Parliament.  The fact that the Government has the confidence of Parliament (in that a motion of no confidence has not been passed under the Fixed Terms Parliament Act 2011) does not, however, mean that the Queen must follow the advice of the Prime Minister if that conflicts with the expressed will of Parliament in the form of a Bill presented for royal assent.  I agree with Professor Poole that the convention that the Queen follows the advice of her ministers is of a lower order than the constitutional principle that she respects the will of Parliament.  In the unlikely event that the two are in conflict, the latter prevails.

Third, the principle of Parliamentary sovereignty as it has developed for the last 350 years rests upon the fact that Parliament – at least, the House of Commons – represents the will of the electorate freely expressed through the ballot box at a general election (see Lord Hoffman R (Bancoult) v SSFCO [2009] 1 A.C. 453, [35]).   For the monarch to withhold assent to a Parliamentary Bill would not only breach the 350 year-old democratic underpinning of our traditional constitution but would also be incompatible with Article 3 of the First Protocol to the European Convention (A3P1), given effect domestically by the Human Rights Act 1998 and in the light of which our constitutional laws and conventions must be read:

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

In R (Barclay) v Lord Chancellor [2010] 1 A.C. 464, [80], Lord Collins suggested (obiter) that the refusal of the unelected Lords to pass legislation passed by the elected Commons might breach A3P1:

If a second chamber had a power permanently to frustrate the will of the democratically elected chamber, and the power was not purely theoretical, like Her Majesty’s power to withhold Royal Assent, then there would at the least be a case for breach of article 3.

It would follow that if the Queen exercised her power to withhold royal assent then that too would breach A3P1 as it would frustrate the will of the democratically elected chamber to enact primary legislation.  I should add that, both for orthodox constitutional reasons and A3P1, primary legislation enacted by Parliament prevails over any expressed view of the ‘people’ in an earlier referendum, ours being a representative not a direct democracy.  The referendum was a creature of Parliament; an Act of Parliament was required for the Article 50 process to begin; and Parliament could revoke Article 50 by similar means.

Fourth, and contrary to the view expressed by Finnis et al, there is nothing unconstitutional about legislation that is passed by a majority of MPs in Parliament which has not been moved by, and is not supported by, the Government of the day.  Every Private Member’s Bill is capable of being passed into law, although the Government’s control of the Parliamentary timetable under Standing Order 14 means that the prospects of such a Bill being passed without government support are tiny, which is why the Cooper-Letwin Bill first required a successful motion to amend SO 14.  But a Private Member’s Bill, when passed, is not unconstitutional.  So the argument that the Government is entitled to respond to such legislation by drawing the Queen from her purely formal position (and one of strict neutrality) into the political ring does not begin to get off the ground.

My second argument is that it would be unlawful for the Prime Minister to advise the Queen to exercise her power of prorogation or to withhold assent to a Bill in order to frustrate the will of Parliament, because she would be advising the Queen to do that which she has no power to do.  I also consider that any such advice would be susceptible to judicial review.  In R (Barclay) v Lord Chancellor (No 2) (SC(E)) [2015] AC 276, the Supreme Court held that the giving of unlawful advice by the Privy Council (in the form of the Secretary of State) to the Queen in the exercise of her power to give royal assent was justiciable.  Granted, that was in the context of the passage of primary legislation by the Parliament of Sark, a Crown Dependency, and there are clear differences between the legislative processes of Sark and Westminster, not least that in Sark royal assent for primary legislation may be withheld on grounds that it is contrary to good government or the UK’s international obligations (R (Barclay and others) v Lord Chancellor [2010] 1 A.C. 464, [9-10]).   However, I do not consider these differences affect the question of the justiciability of such advice. There is a more difficult question whether a judicial review of such advice would be precluded by s 9 of the Bill of Rights 1689 as ‘impeaching’ or ‘questioning’ any ‘proceedings in Parliament’.   In Barclay (No 2) Baroness Hale (giving the judgment of the Supreme Court) held that the giving of royal assent by the Queen to an Act of the UK Parliament was immunised from challenge by s 9:

Nor is the analogy with Royal Assent to Acts of the United Kingdom Parliament exact: the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts of the United Kingdom.

However, this observation was obiter and not the subject of full argument and, moreover, the court was not considering the situation with which we are concerned.  In my view s 9 would not apply in the circumstances envisaged.  The giving of advice by the Prime Minister to the Queen is not an act of Parliament but of the executive and is therefore not caught by s 9:  Bank Mellat v HM Treasury [2013] UKSC 38, [43], [56].   Moreover, to exclude the courts’ review of such advice in the present circumstances would be contrary to the objects and purpose of s 9 which are, first, to enshrine the sovereignty of Parliament as derived from its representative character and as affirmed by s 1 of the Bill of Rights; and, second, to make clear the limits of the courts’ jurisdiction in reviewing Parliament’s actions taken in that capacity (Bancoult, [35]).  The giving of advice by the executive whose sole purpose is to frustrate the will of Parliament would be the antithesis of Parliament’s intention in promulgating s 9 and, in those exceptional circumstances, it would not apply to exclude the court’s supervision (Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997).  This interpretation of s 9 would also be required by s 3 Human Rights Act 1998 to ensure its compatibility with A3P1 (and see, by analogy, Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825, [34]).

These are extraordinary times, and an attempt by the Government to thwart the expressed will of Parliament by advising the Queen to prorogue Parliament or to withhold assent to a Bill would be an extraordinary constitutional development, as would the Lord Chancellor’s refusal to submit such a Bill for royal assent.  If faced with a challenge to such advice or action I think it likely that the courts, as the ultimate guardians of the Constitution, would accept they had jurisdiction to decide its unlawfulness.

Paul Bowen QC is a barrister at Brick Court Chambers specialising in public and human rights law and Honorary Professor at the School of Politics and Law, Sussex University

EU law does not compel UK to participate in European Parliament elections

Lord Anderson of Ipswich KBE QC, Marie Demetriou QC and Emma Mockford of Brick Court Chambers have today published an Opinion, along with two other QCs and Professor Piet Eeckhout, Dean of the Law Faculty at UCL, grappling with the controversial issue of whether the UK need hold European Parliamentary elections in the event that there is any further extension of Article 50 beyond April 2019.

Many key figures in the Brexit process have appeared to assume that such elections would be inevitable if there is a further extension. Indeed, the Prime Minister reported to the House of Commons just last week that any further extension of the Article 50 notification period “would certainly mean participation in the European parliamentary elections”.

However, the Opinion published today concludes that this is wrong as a matter of law. Its authors dismiss concerns that a failure to hold elections in the UK could invalidate subsequent EU laws. They proceed to examine the application of EU electoral law, and the principle of representative democracy, to a departing member state whose citizens will not be affected by what the European Parliament decides. And finally, they suggest some practical mechanisms, falling short of outright treaty change, by which an extension could be assured without the need for European elections in the UK at all.

This is a matter not just of legal disagreement, but – as identified by no less a figure than Eleanor Sharpston, a serving British member of the EU’s Court of Justice – of huge practical significance, given that:

  • The prospect of participating in European elections is viewed with intense distaste by many MPs. Campaigning to elect MEPs for a nominal five-year term, almost three years after the vote to leave the EU, is seen — particularly in strongly Leave areas — as something to be avoided at almost any cost.
  • Even if the political will could be found to hold the elections, it will only be possible to do so once preparations have been made. These include the giving of notice by returning officers, which, under UK law, must be done by 12 April for an election on 23 May.
  • If the UK and EU27 maintain the rigid view that extension past April 12 requires European elections to be held, and if such elections are either politically impossible or precluded by the passage of time, the consequences could be dire.
  • In particular, the refusal of a further extension to the Article 50 period on this ground would dramatically narrow the UK’s options and could help precipitate a no-deal Brexit.

The opinion is here.

An article by David Anderson on the same subject also appears in The Times today, and is here.

BBC’s reality check on using Article 62 of the Vienna Convention on the law of treaties

Richard Gordon QC

Article 62 VCLT seems like a non-starter to kick-start the Withdrawal Agreement into life. The link to the BBC’s reality-check on this is here.