Taxation (Cross-border Trade) Bill (Seventh sitting)

Jonathan Reynolds Excerpts

Thursday 1st February 2018 Public Bill Committees

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

It is lovely to see you in the chair, Ms Buck. I would like to say a brief few words in support of amendments 89, 90 to 96 and new clause 12 tabled by colleagues from the Scottish National party.

There is no doubt that the most consistent area of discussion in this Committee has been the constitutional implications of the Bill and the concentration of too much power in the hands of the Executive as a result. We have discussed ways to try to make the Trade Remedies Authority more available to scrutiny, how to improve the scrutiny of secondary legislation and how to adjust the public notice procedure—all of which were intended to provide some basic safeguards against the abuse of power and, as the hon. Member for Aberdeen North said, are an attempt to make better laws. We therefore support this package of amendments, which seek to achieve the same, and point out to the Government that it is not only opposition political parties that are concerned about the precedent being set here.

As the hon. Member for Aberdeen North said, the amendment would simply add an important layer of parliamentary scrutiny, by enforcing the super-affirmative resolution procedure where regulations have been created with regard to trade remedies. That would help to address some of the shortfalls of the secondary legislative process.

As the Committee well knows, statutory instruments when carried out under the negative procedure only permit Parliament to raise objections. We support the extensive stipulations in the amendments on presenting draft regulations to the House, which the Minister would be mandated to carry out. We believe that will prompt greater accountability and a better legislative process.

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[Anneliese Dodds]

I shall not return to what the witness did or did not say. I think there may be a difference of opinion there. I am afraid I do not agree with the Minister’s description of the made affirmative procedure. In practice, of course, that procedure means that measures are in place from the moment they are laid, so they are immediately enacted. There need be no effective scrutiny by way of discussion by the House or other bodies, to allow them to stay in place over time. We are talking about a mechanism very different from what would usually be applied.

I shall not push the point. I appreciate the Minister’s comments. I just hope that the Government will heed our call for them to restrict the use of the measure to exactly the kinds of areas that the Minister just described—only those where the procedure is necessary to protect public revenue, or for continuity in the administration of the tax system. If its use goes beyond that, we fear we shall be in tricky waters. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Jonathan Reynolds]

I beg to move amendment 140, in clause 32, page 20, line 8, leave out subsection (9).

This amendment limits the powers with respect to public notices.

[The Chair]

With this it will be convenient to discuss amendment 141, in clause 37, page 24, line 36, leave out “that provision” and insert

“ensuring that public notice is available in an accessible form to all people who are likely to be affected by or interested in the notice”.

This amendment makes specific provision about the accessibility of public notices.

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[Jonathan Reynolds]

The amendments deal with public notices—one relates to powers and the other to accessibility. The Opposition have already raised concerns, by way of amendment 139, about the alarming concentration of power in the hands of the Executive that would come about if the conversion of public notices into regulations were to be allowed. It is a deeply troubling constitutional overstep, which must be challenged at every stage.

The amendments focus on limiting the powers of the Executive with regard to public notices, which the Opposition believe would be a fundamental over-reach of the Executive’s powers. We are not the only ones to argue that case. The House of Lords Delegated Powers and Regulatory Reform Committee published its report after Second Reading in the Commons. That flagged up the constitutional difficulties that would arise from making law by public notice. It was scathing in its assessment of the provision.

Amendment 141 also addresses a pressing issue that arises from using the method in question as a tool for creating regulations. At no point does the Bill indicate what constitutes a public notice. As the House of Lords Committee highlighted, under clause 37(5), the only qualification at present is purely that the person issuing it has selected a channel that they consider appropriate. A definition of “appropriate” is absent from the Bill. We are told that that could even include a tweet or a message on Facebook. We can all agree that policy made by Twitter is not a good idea.

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[Mel Stride]

Amendment 140 seeks to limit the powers in the Bill to use public notices. However, a notable effect of the amendment would be to remove the ability to use regulations to cover matters that are dealt with in a public notice, which may limit the Government’s ability to package delegated legislation in the most effective way.

The circumstances in which provision can be made by public notice are well defined in the Bill. There is no power in the Bill to allow for provision that may be made by regulations to be made alternatively by public notice. I reassure the Committee that it is not unusual for public notices to be used to make provision in relation to the administration of tax regimes. They are typically used, for example, to make provision that is purely technical or administrative in nature; that may be subject to regular updating, including to take account of external factors; that may need to be changed swiftly; that is based on external sources; or that is not otherwise required to be set out in secondary legislation, but is included to improve transparency. An example in the Bill is the provision enabling the form and content of a customs declaration to be set out in a public notice.

Another effect of the amendment would be to disapply subsections (6) to (8) of clause 32 in respect of public notices, although they would continue to apply in respect of regulations. Let me reassure the Committee that those subsections do not widen the subject matter that public notices can be used to address. As I have stated, that subject matter is set out clearly by the relevant clauses and schedules. On that basis, I urge the Opposition to withdraw amendment 140.

Amendment 141 aims to require public notices published under the Bill to be made in a form that is accessible to

“all people who are likely to be affected by or interested in”

them. I sympathise with the amendment’s general thrust. It is, of course, vital that any public notice published by HMRC is made available in an accessible format to everyone affected. However, I assure the Committee that including such an obligation in the Bill is unnecessary. HMRC has extensive experience of producing public notices to communicate changes in tax policy to affected parties, whether individuals or businesses, as part of its wider engagement with bodies that represent customers. That includes ensuring that any information set out in a public notice is clear and accessible. Indeed, the Government already make everything we publish on gov.uk accessible and available in a variety of formats. The public notices published under the Bill will be no different.

HMRC also has good working relationships with a range of business representative groups and uses those channels to reach the wider business community. For example, it is normal practice to share advance drafts with business groups to seek their views. HMRC will continue to follow the same approach with its public notices on the changes introduced by the Bill. I therefore ask the hon. Gentleman to withdraw his amendments.

[Jonathan Reynolds]

I have listened intently to the Minister’s reassurance, particularly about the modesty of public notices and the undesirability of making more specific recommendations about their accessibility. I also listened to his point that public notices cannot replace regulation. However, the Bill states that regulations can replace public notices, which suggests that the burden of what is being considered is wider than the Government have declared.

Even in my relatively short time as a shadow Treasury Minister, I have seen relatively arcane bits of our regulatory constitutional apparatus used on several occasions, for instance to limit the scope of debate on amendments to a Finance Bill. Once powers are in place, they can be used for ends for which they were not intended when they were put on the statute book.

I do not intend to press the amendment to a vote, but I think that we may have to return to the issue on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Clauses 33 to 38 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(David Rutley.)