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Government defends legislative procedures for Customs Bill

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The Financial Secretary to the Treasury, Mel Stride, has defended the government’s use of the less rigorous ‘negative’ procedure for making secondary legislation in relation to the Taxation (Cross-border Trade) Bill. The minister also defended the government’s use of public notices for making changes to tax law of a ‘purely technical or administrative’ nature.

The Lords Delegated Powers and Regulatory Reform Committee’s report in January criticised the balance between the government’s use of the ‘affirmative’ procedure and the ‘negative’ procedure, which does not require detailed parliamentary scrutiny. In a letter responding to the report (see, the financial secretary accepted that it would be appropriate for clauses 30 (import duty), 42 (VAT) and 47 (excise duty) to be subject to the ‘made affirmative’ procedure, which gives immediate effect to legislation, but requires express approval of the House of Commons within 28 days.

The minister argued that, in all other cases, ‘adopting the affirmative procedure would produce impractical results ... having regard to the frequency and speed with which regulations may need to be updated’.

In his response to the Constitution Committee’s report published in February, the minister defended the use of the ‘made affirmative’ procedure to give immediate effect to tax legislation, where there would otherwise be a gap in statute, such as where the customs tariff requires swift amendment. The government considered the ‘draft affirmative’ procedure, requiring prior approval by the House of Commons, to be appropriate in the case of clause 31(4), which allows the UK to give effect to a customs union arrangement with another territory. See

The minister rejected the view expressed by both committees that making law by public notice is necessarily a ‘radical concept’, describing it as ‘usual practice for public notices to be used in relation to the administration of tax regimes’. Examples in the Taxation (Cross-border Trade) Bill where public notices would be appropriate were ‘the form and content of a customs declaration, and the currency exchange rates that will apply for the calculation of import duties due’. The Bill also provides for trade remedy measures to be imposed by public notice.