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

William Wragg Excerpts

Tuesday 23rd January 2018 Public Bill Committees

[The Chair]

Thank you.

[Mr William Wragg (Hazel Grove) (Con)]

Q It is good to see you. You were on the panel that came before the Procedure Committee, of which I am a member, when we were drawing up the amendments that were accepted by the Government on the European Union (Withdrawal) Bill about a sifting committee for secondary legislation. It appears that secondary legislation is talked about more than ever at the moment. Is it a problem of the system or just an excuse for ineffectual parliamentarians?

Joel Blackwell: That is a good question. In 2014, with our “The Devil is in the Detail” report, we wanted to tell the story of delegated legislation. The research that we did, as far back as the Statute of Proclamations, but particularly in the 20th century, showed that many reports had been published that raised big concerns with the way that the House of Commons in particular scrutinises statutory instruments. In 1933, the Donoughmore Committee reported on the inadequate procedures in place and the inadequate scrutiny of SIs by Parliament. We wanted to raise the point that the issues raised by that Committee in 1933 had not been resolved.

There has been a problem in the past, particularly in the House of Commons, with engagement with the scrutiny of delegated legislation. Part of that could be because it is very technical and can be, dare I say it, quite boring at times.

[Mr Wragg]

Q Would you not think that given all the interest expressed in it, whether it is boring is neither here nor there? People are able to do it.

Joel Blackwell: Exactly. We think that the lack of engagement has been primarily because of the inadequate procedures in the House of Commons—particularly two things. The first is the way that MPs, if they want to debate a negative instrument, have to use the early-day motion procedure. Secondly, we think the Delegated Legislation Committees for debating under the affirmative procedure are inadequate. We think that has been the issue with engagement thus far.

[Mr Wragg]

Q Do you think it is perhaps not the system but rather the ignorance of parliamentarians?

Joel Blackwell: It is a very complex, convoluted process. During our research, which started in 2011 and culminated in the report in 2014, that was a big issue for parliamentarians and, more importantly, for individuals and businesses that are supposed to adhere to the rules and regulations that are being brought forward in Parliament. Complexity is a problem, but I think it is more to do with the processes, particularly in the House of Commons.

[Mr Wragg]

Q Forgive me—just one more question, Mrs Main. I was playing devil’s advocate there. You mention that this goes back as far as a report in 1933. So it really is not the case that somehow our Brexit legislation and this legislation brings forward new questions about secondary legislation.

Joel Blackwell: It is bringing forward old questions that are yet to be addressed, despite numerous parliamentary Committees trying to, and then putting them on the “hard to do” pile. Knowing that the Brexit Bills are going to have to be framework Bills—based on the fact that the legislation for Brexit is going to need some speed and flexibility—the Hansard Society thinks that this is a perfect opportunity to highlight the problems and for parliamentarians to get to grips with them, when challenged and faced with one of the most complex legislative tasks that Parliament has seen.

[The Chair]

Thank you. There are five Committee members who wish to pose a question. I would ask that you keep your answers as concise as possible, so that everyone gets a chance to touch on the point that matters to them.

--- Later in debate ---

[Jonathan Reynolds]

Q Are there any specific areas of the Bill that currently put significant powers in the hands of the Secretary of State but that make you think we should consider the arguments for an enhanced degree of parliamentary oversight?

Joel Blackwell: That is a question I have been posing to myself for the last few days. Honestly, no. We have to be careful, knowing that the procedures for the scrutiny of delegated legislation in the Commons are inadequate, that we do not just fall back on using a strengthened, enhanced or super-affirmative procedure for everything when the affirmative procedure would be appropriate. We need to play the ball rather than the man, to use a football analogy. You have to look at the powers that are brought in front of you and decide there and then whether the scrutiny period is appropriate.

The problem with this Bill, and with other supply Bills, is that the vehicle to highlight inappropriateness in the degree of scrutiny and the appropriateness of delegated powers is the House of Lords Delegated Powers and Regulatory Reform Committee, and there is no counterpart in the House of Commons. The Bill just highlights the lack of that counterpart. But no, looking at the powers, I do not think that the strengthened scrutiny procedure would be useful in this case.

[Mr Wragg]

Q What are the constitutional similarities between this Bill and the European Union (Withdrawal) Bill?

Joel Blackwell: Having said that I do not think the strengthened scrutiny procedure would be appropriate for any of the powers, they are wide powers. If we look at clause 51 in particular, the wording is very similar to that used for clause 7, so I think there are similarities. What has been highlighted is that people would like, potentially, to use a Committee to look at all Brexit statutory instruments and at the moment that will not happen. You could insert a change into the Standing Orders that would allow you to do that, which is something to consider.

[Mr Wragg]

Q But do you recognise the fundamental difference between this Bill and the European Union (Withdrawal) Bill, on which the Government accepted five of the amendments that concerned enhanced scrutiny? Do you recognise that distinction?

Joel Blackwell: Yes.

[Kirsty Blackman]

Q With all the issues that have been raised, especially about the negative procedure and the ways in which the House of Commons can scrutinise this, given it is not going to the Lords particularly, do you think this is a good way to do things or would there be a better way?

Joel Blackwell: I think that the Hansard Society would like to see an equivalent Delegated Powers and Regulatory Reform Committee, first off, in the lower House—or some MP in the composition of a Joint Committee or what have you. That would be a good opportunity.

I think that delegated powers notes are extremely useful documents. This one is 174 pages long. There are well over 150 delegated powers in the Bill. Some of the justifications I am struggling with, particularly as regards the use of urgency and non-urgency. I think time is an issue here, particularly if you do not have the backstop of further scrutiny by a Chamber—the second House—that is usually very good at looking at delegated legislation and has taking the lead on it in the past.

When we were doing a similar Bill, which became the Welfare Reform Act 2012, a call by many MPs on the Public Bill Committee at the time was that it would be really useful if they had draft regulations alongside the scrutiny of the Bill. You could do things like that to improve scrutiny of delegated powers but, fundamentally, the lack of representation, the fact that you would have to wait for the Bill to get to the House of Lords for a report to be published, is an issue.

Perhaps one way around that is that the House of Lords Delegated Powers Committee does what it has done for this Bill and the European Union (Withdrawal) Bill, and publishes, as usual practice, the Bill as soon as it enters the House of Commons.