Tinkering with steel products – the Secretary of State, the TRA and Safeguards

As from 1^st June 2021, the Trade Remedies Authority ("TRA") was established as an authority independent of the UK government.  That is the result of the Trade Act 2021 (Commencement No. 1 and Expiry Provision) Regulations 2021, S.1. 2021/550, regulation 3. This brought into force the Trade Act 2021, section 6 and relevant schedules.  As Schedule 4, paragraph 1, put it, the TRA "is not to be regarded… as the servant or agent of the Crown".

It is plainly important that the TRA be an independent authority.  Both the TRA itself and the UK government benefit from that being so.  Independence is not, however, the only characteristic that the TRA must exhibit.  Authority is another, as its name suggests.

The TRA will, therefore, be interested to see the reaction of the Secretary of State (The Rt. Hon. Liz Truss M.P.) to its recommendations to her of 3rd June 2021. These recommendations followed a review of safeguard measures on certain steel products (TF0006). The measures came into force at the end of December 2020. The recommendations are available here.

The TRA recommended that the application of safeguard measures be revoked in respect of some categories of steel products and continued in respect of others. Discontinuance would have taken effect on 1st July 2021 (see Notice of Determination 2020/06: "Safeguard measures on certain steel products – application of tariff rate quotas").

The Secretary of State has the choice of accepting or rejecting a recommendation (see The Trade Remedies Increase in Imports Causing Serious Injury to UK Producers (EU Exit) Regulations 2019, S.I. 2019/449, regulation 52). She wished to continue all safeguard measures and rejected and accepted the TRA's recommendations accordingly.

The required result has been achieved by publishing two notices having effect from 1 July 2021, pursuant to the Trade Remedies (Extension of Tariff Rate Quota) (EU Exit) Regulations 2021, S.I. 2021/783.  The Notices are Trade Remedies Notices 2021, Nos. 1 and 2, "Safeguard measure: Tariff rate quota on steel goods".  They are available below:

No.1

No.2

According to the Financial Times of 1 July 2021, allies of the Secretary of State have insisted that the TRA would remain "robustly independent" and that she intended only to "tinker with the system".  It may be assumed that the allies of the Secretary of State have a sense of humour.  Tinkers are generally known for continuing the life of damaged, if modest, steel products.

Perhaps, though, the allies address the wrong issue.  The independence of the TRA may be well demonstrated, not damaged, by the need for the Secretary of State to depart from its recommendations.  What is in issue, perhaps, is not independence but authority.

That is not to say that the actions of the Secretary of State are necessarily unjustifiable. The EU has continued its safeguard measures for three years (see Commission Implementing Regulation (EU) 2021/1029 of 24th June 2021). The UK could have been the target of increased imports had its measures not been continued. Maintaining the independence of the UK's trade policy and the independence and authority of the TRA is by no means straightforward