My Lords, I recognise that the amendments tabled by noble Lords are intended to reinforce the independence and impartiality of the TRA, but I reassure them that this legislation has already been designed with this in mind. Both the Trade Bill and the Taxation (Cross-border Trade) Act have inbuilt protections of the TRA’s impartiality that already address many of these points. I reassure the Committee that we want the TRA to be independent and impartial, because it is the absolute requirement for a body of that sort.
Turning first to Amendment 78, in the name of the noble Baroness, Lady Kramer, it is of course important that the Secretary of State has regard to the operational independence and impartiality of the TRA. But imposing a positive duty may require the Secretary of State to take potentially excessive steps to protect the TRA’s independence, which might prevent her making any requests at all, thereby depriving her of the vital expertise that the TRA holds.
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Amendment 79, also in the name of the noble Baroness, Lady Kramer, seeks to ensure that the Secretary of State must have regard for the need to protect the TRA’s capacity and funding when making a request. However, the amendment does not put the Secretary of State under any obligation to weigh up the impact of a request on the TRA’s resources against the efficiency of using it. As noble Lords are well aware, the outcome of a request is often equally as important as the resources required to implement the request and ignoring the outcome when deciding whether to approach the TRA could make it harder for the Secretary of State to justify making requests, or to make a balanced decision on the validity of a request.
On Amendment 104, also in the name of the noble Baroness, the provisions of the Taxation (Cross-border Trade) Act 2018 require the Secretary of State to either accept or reject the recommendations of the
TRA. However, this amendment would have the effect of preventing the Secretary of State from exercising her discretion to take certain actions such as retaking her decision following a direction from the Upper Tribunal. I would like to clarify for the noble Baroness that the Secretary of State cannot amend the level of duties that are recommended by the TRA or impose duties if the TRA has not recommended them. If the Secretary of State decides measures are not in the UK’s interests and rejects the TRA’s recommendation, he or she will be obliged to lay a Statement before the House of Commons setting out the reason for her decision.
Amendment 104A, in the name of my noble friend Lord Lansley, would give the chair the sole ability to appoint a chief executive, as well as remove the process for the Secretary of State to appoint a chief executive if there is no chair in post. Let me be clear: the Secretary of State will not be exclusively responsible for appointing members of the TRA’s board. The TRA chair will be responsible for appointing executive members, who will be TRA’s employees. This includes appointing the TRA chief executive, subject to the Secretary of State’s approval—a recognised process and one that is set out in the Cabinet Office guidance for public bodies. If the first TRA chair has not been appointed, then the Secretary of State has the power to appoint the TRA chief executive. However, I would like to reassure my noble friend Lord Lansley that this is purely an operational contingency power, which we do not expect to use now that the Secretary of State has confirmed her intention to appoint Simon Walker as TRA chair.
Amendment 105 would require the Secretary of State to consider the views of the International Trade Committee before appointing a chair for the TRA. I am afraid that I have to disagree with my noble friend Lord Lansley. Requiring consultation with the ITC before appointing a chair is an unprecedented change in the public appointments world. There are clear existing guidelines as to which appointments should be subject to pre-appointment scrutiny and the chair of the TRA does not fall under this requirement.
Amendment 108A, also in the name of my noble friend Lord Lansley, would remove any power of the Secretary of State to set the terms and conditions and salary, or make arrangements for the removal or resignation of a chief executive, should a chief executive be appointed prior to the appointment of the first chair. This amendment will have no effect after the first chair—who has already been identified—has been appointed.
Amendment 114, in the name of the noble Baroness, Lady Kramer, seeks to ensure that the Secretary of State must protect the TRA’s operational independence and ability to make impartial decisions before publishing guidance. Measures within the Bill as it stands already require the Secretary of State to consult with the TRA and have regard to its advice before publishing guidance. These measures also prevent the Secretary of State from publishing guidance in relation to a specific investigation being carried out by the TRA.
The noble Baroness’s amendment would not add to the sum of the protections that we have put in place to guard the independence of the TRA, but it might make it hard to publish any guidance at all, given the range of potential actions that might be required to protect the TRA from external influences and ensure that its operational independence and ability to make impartial assessments were protected. I am sure that is not the noble Baroness’s intention.
Noble Lords also asked about membership of the TRA board. That is covered in a subsequent group of amendments, so, if I may, I shall defer discussion of it until that point.
I hope I have been able to reassure noble Lords that government shares their concerns that the TRA should be an independent body and that the measures necessary to ensure that are already in place. I therefore ask them not to press their amendments.