Trade (Disclosure of Information) Bill

Nicola Newson

Introduction of the bill

The Trade (Disclosure of Information) Bill was announced on 15 December 2020. Jacob Rees-Mogg, Leader of the House of Commons, made a short business statement in which he said that all stages of the bill would take place in the House of Commons on 16 December 2020. The bill and accompanying explanatory notes were published shortly after Mr Rees-Mogg’s business statement.

Mr Rees-Mogg did not directly explain why the Government was introducing a new bill that replicates some provisions contained in another government bill, the Trade Bill. However, he implied that the Government wants these powers on the statute book before the end of the Brexit transition period on 31 December 2020. The bill’s explanatory notes state that the Cabinet Office is seeking to be able to receive data from other departments “to manage and mitigate potential disruption caused by the new border requirements at the crucial moment of transition”.

A motion to suspend standing orders 46 and 47 is due to be considered in the House of Lords on 16 December 2020. If agreed to, this would allow all stages of the bill to take place in the Lords on 17 December 2020, and committee stage to be ‘negatived’. This means that immediately after the second reading, the member in charge of the bill moves “that this bill be not committed” and the question is put. If it is agreed to, the next stage is third reading.

Relationship with the Trade Bill

The bill essentially replicates certain provisions in the Trade Bill, which is currently at report stage in the House of Lords. The Lords Library briefing on the Trade Bill covers its provisions and its passage through the House of Commons in more detail.

Clauses 1 to 3 of this new bill reproduce clauses 8 to 10 of the Trade Bill, with a few changes. The drafting of the new bill incorporates several amendments that the Government is seeking to make to clauses 8 to 10 of the Trade Bill in the House of Lords to:

add the devolved authorities to the list of bodies with which Her Majesty’s Revenue and Customs (HMRC) could share information for facilitating trade (clause 1 of this bill/clause 8 of the Trade Bill);
correct drafting errors (clauses 1 and 2 of this bill/clauses 8 and 9 of the Trade Bill); and
take account of the fact that parts of the Sentencing Act 2020 are not yet in force, when setting out penalties for offences under the bill (clause 3 of this bill/clause 10 of the Trade Bill).

These amendments were discussed at the Lords committee stage of the Trade Bill, but the Government agreed to withdraw them and re-table them at report. During the committee stage debate, members of the House of Lords expressed concerns that the information-sharing powers in clause 8 (equivalent to clause 1 of this bill) were widely drawn. There was also some discussion about how clause 9 (equivalent to clause 2 of this bill) would apply to the devolved authorities.

Responding to the announcement of the new bill, Valerie Vaz, Shadow Leader of the House of Commons, asked if the Government still intended to bring the Trade Bill back to the House of Commons. Jacob Rees-Mogg confirmed that it would return to the Commons once it had completed its stages in the Lords.

If both bills pass in this session with similar provisions, then the provisions in this bill would expire.

The Trade Bill contains an additional clause on data-sharing that does not appear in this new bill. Clause 7 of the Trade Bill would allow HMRC to collect information about UK exporters.

What would the bill do?

Background

The bill would enable HMRC, secretaries of state, the Minister for the Cabinet Office, Highways England and port health authorities to share data to facilitate their public functions relating to trade. The Cabinet Office has stated these powers will be needed to manage the flow of goods at the UK’s borders when the transition period ends on 31 December 2020, whether or not a trade deal is in place with the EU:

After leaving the European Union (EU), irrespective of the future relationship, Government departments with trade functions will need to have access to data held by other public authorities to assist them to carry out their functions relating to trade. For example, information will be required by the Cabinet Office so that, through its Border and Protocol Delivery Group, it can analyse and promote efficiencies in the flow of traffic, goods and services in and out of the United Kingdom. Clauses 1 and 2 allow specific public authorities to share data with government departments with trade functions in order that they can fulfil those functions.

Whether a free trade agreement is agreed with the EU or not, the end of the transition period will see the introduction of new border requirements. Delivering the data-sharing clauses in this bill [is] an integral part of the smooth and effective implementation of the UK’s new relationship with the EU.

The Cabinet Office is establishing the Border Operations Centre to manage and mitigate potential disruption caused by the new border requirements at the crucial moment of transition. Without the data sharing clauses, Cabinet Office will be limited in the data it can receive from other departments, which will significantly hamper its ability to provide the single version of truth for flow of goods through the border, including a commodity level view of flow across the border (such as medicines and food supply). This will limit its ability to manage flow, minimise the friction caused by new controls introduced at the end of the transition period and support the continued supply of critical goods.

Disclosure of information by HMRC

Clause 1 sets out circumstances in which HMRC could lawfully share information with other bodies. Clause 1(1) would allow HMRC to share information with public or private bodies to facilitate their public functions relating to trade. This would include sharing information with the devolved authorities and international organisations. Clause 1(2) gives examples of such functions:

the analysis of the flow of traffic, goods and services into and out of the UK;
the analysis of the impact, or likely impact of measures or practices relating to imports, exports, border security and transport on such flow;
the design, implementation and operation of such measures or practices.

Clause 1(3) provides that anyone receiving such information could only use it for the purposes set out in clause 1(1) and could not further disclose the information without permission from HMRC. If information was passed on without authorisation in a way that allowed an individual to be identified, section 19 of the Commissioners for Revenue and Customs Act 2005 would apply (clause 1(4)). This deals with the offence of wrongful disclosure. It provides for a maximum penalty of two years’ imprisonment for such an offence. HMRC would not be allowed to disclose information in breach of existing data protection or investigatory powers legislation (clause 2(6)).

Disclosure of information by other authorities

Clause 2 would enable the secretary of state, the Minister for the Cabinet Office, strategic highways companies and port health authorities to disclose information for the purposes of facilitating government functions relating to trade. Clause 2(2) gives the same list of examples of such functions as in clause 1(2).

The list of public authorities that are allowed to disclose such information could be changed by regulations made using the affirmative procedure (clause 2(9) and (10)). Public authorities would not be allowed to disclose information in breach of existing data protection or investigatory powers legislation (clause 2(8)).

Offences

Under clause 3, it would be an offence to disclose data in contravention of clause 2 that enabled the identification of an individual. Clause 3 sets out the defences and penalties that would apply to such an offence.

Expiry of sections 1 to 3 if the Trade Bill passes with similar provisions

Clause 4 would ensure the operative provisions of this bill cease to have effect if similar provisions are passed in both this bill and the Trade Bill in the same parliamentary session. If that happened, the secretary of state would be required to pass regulations to make clauses 1 to 3 of this bill expire when the corresponding provisions in the Trade Bill came into force.

General provisions

Clause 5 contains definitions of various terms used in the bill.

Clause 6 makes provision about the extent, commencement and short title of the bill. It would extend to England and Wales, Scotland and Northern Ireland. It would come into force on the day on which it is passed.