European Union (Withdrawal) Bill

Lord Adonis Excerpts

Committee: 10th sitting (Hansard - continued): House of Lords
Monday 26th March 2018 Lords Chamber

Debate on whether Clause 12 should stand part of the Bill.

[Lord Adonis (Lab)]

The debate that I seek to initiate is on the ability to increase fees and charges by delegated or sub-delegated powers. It is a straightforward matter of proper parliamentary oversight that that should not happen.

Having said that, my role in this debate is one which I am now performing regularly in this Committee—to act as John the Baptist to my good noble friend Lord Lisvane, who is probably the greatest expert in the history of Parliament on the procedures which are adequate and necessary for raising fees and charges. I now make way for the authorised version to be given to the Committee.

[Lord Lisvane (CB)]

My Lords, there are few better warm-up men than the noble Lord, Lord Adonis, but I fear that I will disappoint your Lordships. As the Question formally before the Committee is whether Clause 12 shall stand part of the Bill, I will speak to Amendments 348 and 349 rather than moving Amendment 348. The amendments are in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. I can be very brief, even at this refreshingly early hour of the evening, as the issues in both amendments have already been considered by the Committee in one way or another. It may indeed be that we have had a sneak preview of the Minister’s response on both issues.

Amendment 348 would prevent fees or charges to be levied by tertiary legislation. At an earlier stage, I expressed concern that this Bill, already proposing to confer sweeping powers upon Ministers, should go even further and permit the making of the law of the land by persons and bodies authorised by a Minister. The authorisation would, as the Minister said in an earlier debate, be subject to the affirmative procedure, but once that authorisation had been made, the law made under it would be under no sort of parliamentary control and, unless in the form of a statutory instrument—which it would not be—would not even be required to be published.

The arguments against tertiary legislation become even stronger when the powers being given to persons and bodies would allow them to levy fees and charges which might well be used to gold-plate their functions. Clause 14(1) defines “public authority” by reference to Section 6 of the Human Rights Act 1998, and Section 6(3) of that Act, in turn, defines “a public authority” as including a court or tribunal—which is fine—but also,

“any person certain of whose functions are functions of a public nature”.

That spreads the net very wide indeed.

Amendment 349 returns to the issue of ancient principle that taxation should be by primary legislation, not by statutory instrument. When this was considered by the Committee earlier in its proceedings, your Lordships were supportive of the proposition that it should be for the House of Commons to impose taxation by primary legislation, not for Ministers to do it by regulations. In a sense, we are possibly getting a little punch drunk as we see power after power after power being arrogated to Ministers. This is one which should not be.

--- Later in debate ---

[Lord Callanan]

My Lords, I thank noble Lords for this commendably brief debate at this not so late hour, and I thank the noble Lord, Lord Adonis, for his commendably brief opening statements. I was delighted to see that he made his way up to Newcastle yesterday but, unsurprisingly, he forgot to ask me to meet him for a drink while he was there to speak to his 200 or so Brexit-disliking supporters.

[Lord Adonis]

Anti-Brexit supporters.

--- Later in debate ---

[Lord Callanan]

The noble Lord makes a good point. I will answer his question later. In line with the Bill’s aim to provide continuity, Parliament should have the option of approving the ability of authorities such as the Financial Conduct Authority and the Bank of England to independently make fees and charges for firms that will, after exit and under this Bill, fall under their regulatory remit.

Amendment 349 comes to the heart of the purpose of these powers and I thank the same noble and learned Lords for tabling it. This power is designed to ensure that those using specialist services transferred from the EU to the UK pay for them. This involves providing for fees and charges which, though not taxes in the common sense of the term, are at least tax-like. For the benefit of the noble Lord, Lord Tyler, let me clarify what we mean by tax and tax-like charges in this context. Under the guidance laid down by the Treasury, although fees and charges for services that are set on a strict cost-recovery basis are not taxes, any fee or charge that goes further than direct cost recovery is likely to count as taxation or to be tax-like. This would be the case if it cross-subsidises to construct a progressive regime between large multinationals and small enterprises, if it is a compulsory levy in a regulated and surveilled sector, such as banking, or if it funds the broader functions of an organisation not directly part of the cost of providing a service, such as enforcement.

I hope we can all agree that, as part of providing continuity, this Bill should enable the Government to continue to fund public services in an appropriate manner. Because the Government have directly prohibited the increase or imposition of taxation, including tax-like charges of the type I have just described under other relevant powers in the Bill—particularly Clause 7(1)—we require the ability to do so under this power. To give an example, without this the Bank of England would not be able to bring trade repositories—a vital piece of financial market infrastructure currently supervised at the European level—within the scope of its levy-based funding regimes. This House approved the creation of those delegated regimes through the relevant legislation and I hope that, with the proper information before it, it will approve the relevant power in this Bill, subject to the use of the affirmative scrutiny procedure.

Having said all that, let me repeat what I said at the start. We are looking closely at this matter ahead of Report. We will try to see how we might provide appropriate reassurance to a number of the fairly reasonable concerns that have been raised by noble Lords. Even with that caveat, I recognise that noble Lords may still have concerns but I hope that I have given some insight into the Government’s position and satisfied the House of the honourability of the Government’s intentions. I hope that noble Lords will agree, therefore, to not press their amendments or object to Clause 12 standing part.

[Lord Adonis]

I congratulate the Minister on what was, I thought, an excellent response to the debate. After 10 days in Committee, he has learned from the noble Baroness, Lady Goldie, how to charm the House and we have seen a new side to him that we were not aware of before: his conciliatory and emollient side. He may even, in due course, convert to the anti-Brexit cause at this rate of progress—maybe with another 10 days in Committee we would get there.

However, the Minister did the noble Lord, Lord Lisvane, a great disservice. It is a well-known fact that the noble Lord drafted Magna Carta.

[Noble Lords]

Oh!

[Lord Adonis]

So the idea that he was not aware of the various provisions that the Minister mentioned is, of course, a great calumny.

In conclusion, I apologise to the Minister that I did not give him advance notice of my appearance in Newcastle yesterday to campaign against Brexit. I did think of extending an invitation to him to appear alongside me, but decided that he would probably be so busy preparing his compromises on the amendments he was presenting to the House today that he would not be able to fulfil the engagement.

I have spoken for so long only because the Chief Whip, who has now come in to check, said that we would conclude our business this evening by 9.15 pm—and indeed we will; I did not want him to be disappointed. On that basis, I shall not oppose Clause 12 standing part.

Clause 12 agreed.