European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Baroness Kramer

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Baroness Kramer]

Surely there is nothing wrong with a Minister proposing that something is not relevant and appropriate, but to make the final decision on that with no capacity for challenge is completely out of order. That is not a responsibility that should be placed on any member of the Executive.

[Viscount Hailsham]

Before my noble friend responds to that, I wish to make a similar point. If a direction is published, that is after the event; whereas if it has to be done by regulation, that in effect gives everyone the right to say that the Minister has got it wrong. That would be prospective rather than retrospective. Does the regulation procedure not have that advantage? It gives people the right to say the Minister has got it wrong.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Baroness Kramer

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Turnbull]

If something generates a surplus, it is equivalent to a tax and should be covered by the same legislative understandings about taxes.

There is a third category, where a conscious policy relates the fee not according to how much it costs to administer that piece of service to a business or a household but to something like wealth or income. The most egregious example of this was the recently introduced change in the schedule of probate charges, where larger estates are being asked to pay not what it costs to administer the probate but according to the size of the estate, producing charges many times greater than the pure costs. We need to decide in this amendment whether all fees and charges should be treated as taxes—that would be the simplest thing—or whether it is possible to make a distinction between those fees which are purely covering costs and those which go beyond, either in the total or in their social distribution. I hope that the Minister will agree to come back to this House with amendments which make that distinction.

The issue will resurface when we get to Amendments 348 and 349, which deal with Schedule 4, where we have the possibility that secondary legislation could be used to introduce fees and charges by a body that was itself created by secondary legislation. I should say that that would put us not just in double jeopardy but jeopardy squared. We are going to have to deal with the problem of these two points in our work on the Bill.

[Baroness Kramer]

My Lords, I have put my name to Amendments 86 and 127. I will be very brief because the noble Lord, Lord Turnbull, has described the problem we have over fees, charges and legislation. I remember that, when I was on the board of Transport for London and we brought in the congestion charge, it was the alliterative nature of the word “charge” that led us to use it, rather than any legal definition. So my answer to the noble Viscount, Lord Hailsham, is that there may well be legal definitions but I think they are now observed in the breach on many an occasion.

[Viscount Hailsham]

The community charge was clearly a tax and not a fee.

[Baroness Kramer]

The noble Viscount gives a superb example. We can think of parking charges and a whole wide variety. That is why it is really important that there is clarity over when a statutory instrument is the appropriate mechanism and when, frankly, it is not. The Bill as it stands does not give that clarity.

I also put my name to these amendments for another reason. Most in this Committee will remember the time of the tax credit debacle, a major policy change that most of us regarded as a change that should have been introduced as part of a welfare Act. The Government sought to accomplish that through a statutory instrument attached to a Finance Bill. Because of the nature of charges and money-type instruments, it is very possible to use them to affect very broad policy issues and not just the narrow issue of revenue raising. That is why Amendment 127, for example, is an important amendment, as are others in this category. We are all concerned about the inappropriate use of Henry VIII powers, since this Government have actually tried to use these to achieve those much broader policy ends in the past. We have to be sure that we are not leaving a mechanism by which that could be repeated, because that really would be a coach and horses through many of the concerns and issues that have been raised.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Viscount Hailsham and Baroness Kramer

Wednesday 17th January 2018 Lords Chamber

[Baroness Kramer (LD)]

My Lords, my name is also attached to this amendment. The case has been so clearly and emphatically made by the noble and learned Lord, Lord Judge, that I cannot see that there is anything that I have to say that could strengthen that argument. There are other arguments in favour of Amendment 71A, but they are frankly of second order. It is the constitutional issue, right at the heart of our constitution, that is the fundamental one that we have to consider today. I hope that the Minister takes that on board and responds accordingly.

I want to use this opportunity, because this amendment is part of a much larger group, to pay tribute to the Minister and the Bill team. On quite a number of the other amendments in this group—and my noble friend Lady Bowles may speak for a moment or two to them—the Minister and the Bill team have recognised that the issues in contention are those that concern all of us and there was a great deal of common ground. The Minister and the Bill team have listened—in fact, the Bill team have come many times and listened—and they have responded. I expect that by the end of the Minister’s comments on this grouping, we will feel that, with one exception, it is going to be possible to withdraw the amendments, because the response has been satisfactory and respectful on both sides. I attribute a lot of that to the real skill in the Bill team in understanding the core issues and finding ways in which to respond to them that meet the Government’s requirements, as well as the requirements of those scrutinising the issues. I thank noble Lords for this opportunity and hope very much that this House recognises the importance of Amendment 71A.

[Viscount Hailsham]

My Lords, I rise briefly to say that I found the observations of the noble and learned Lord extraordinarily persuasive. I have had a look at the regulations set out in Schedule 2 and, in particular, paragraphs 15 and 18 of that schedule, which make the point that the regulations create criminal offences and deal, too, with the defences that can be advanced as well as the evidentiary requirements. Furthermore, paragraph 18 makes the point that the regulations can impose custodial sentences of not in excess of two years. If we accept what the Government are asking us to accept, we would create powers that are very intrusive in criminal processes and impose custodial sentences—and we are being asked to do so by regulations, which are not amendable. I regard that as the chief vice of this process, because the resolution procedure is simply not amendable.

If we were being asked to contemplate an emergency situation, I might find these exceptional powers acceptable, but I do not think—for the reasons advanced by the noble and learned Lord—that we are dealing with emergency situations, because no such situations, or the likelihood of the same, have been identified. There is a raft of existing legislation that covers the kind of issues that are likely to arise.

I am personally always against giving delegated powers to Ministers whenever I can avoid doing so. There is a fundamental rule in politics that I have observed over nearly 40 years in Parliament, which is that, if you give powers to Ministers or officials, on occasion they will be abused. That is a fundamental rule of politics. Consequently, you give powers to Ministers and officials only where you must and, when you do, you ensure that there are as many safeguards as possible. I find the observations of the noble and learned Lord wholly persuasive. If he seeks the view of this House, he will have my support.