My Lords, I shall speak to Amendment 240. I am really not cut out for the role that the noble Lord, Lord Adonis, has set out for me. I am not sure whether, in its emergency arrangements, the Bishops’ Bar is serving locusts and wild honey tonight. But I will do my best with Amendment 240, which has in common with the other amendments in this group the fact that it seeks to impose a restriction on the use of regulation-making powers. However, it is a little different and it reflects a recommendation of the Delegated Powers Committee.
If secondary legislation made by Ministers or Ministers in the devolved Administrations under Schedule 4 imposes a new fee or charge, those regulations will be subject to the affirmative procedure. But if the fee or charge is subsequently changed— the lovely word “modified” is used, but we can probably assume that the change would be an increase, just as new fares always turn out somehow to be higher—the regulations making that change are subject only to the negative procedure.
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The Government’s argument is that imposing a new fee or charge in the first place is a matter of policy, whereas a subsequent change is a lesser matter. I have to say that I am not convinced by this. The Government have some form. To take the example of the draft
Non-Contentious Probate Fees Order 2017—as your Lordships will shortly discover, “Non-Contentious” here refers to the probate element rather than to the fees element—there was a proposal to raise the fees by 13,000%. That is a vivid example of how a subsequent change in the amount of a fee or charge can be highly contentious. Of course there is a temptation, shall we say, to be a little disingenuous. A new and very modest fee might not frighten the horses, but if such a fee were introduced and a subsequent SI were to raise it dramatically, that would be a completely different matter.
We have already debated the appropriateness—or the inappropriateness, I should say—of taxation by statutory instrument and the question of when cost recovery becomes a tax. I have to say that I did not find the Government’s arguments in that case particularly convincing, especially as this is a regime that could lead to public authorities charging pretty well what they want to charge for their services. The lesser control—the negative procedure—for an increase in a fee or charge is part of that regime, and I find it similarly concerning. So I hope that the Government will come forward on Report with amendments to make such increases subject to the affirmative procedure.