Delegated Powers and Law Reform Committee inquiry: Framework legislation and Henry VIII powers

Framework legislation sets out principles for a policy, but does not provide substantial detail on the face of the bill as to how that policy will be given practical effect. Instead, it provides broad powers to fill in the detail at a later point, most often by Ministers through secondary legislation. Henry VIII powers allow Ministers to amend acts of parliament by secondary legislation.

Our response states our view that tax law should in general be set out in primary legislation, especially where it relates to the exercise of powers setting out what is subject to tax and imposing burdens or obligations on citizens. This is to ensure sufficient scrutiny and transparency. We think that secondary legislation should be reserved for operational and administrative matters in respect of tax law. We do not think that the use of Henry VIII powers is appropriate in respect of tax law.

We take the opportunity provided by the inquiry to suggest that a better way of ensuring the Scottish Parliament has the ability to amend primary legislation would be to institute a regular tax legislative process such as a finance or tax bill. This would offer an appropriate and timely opportunity to make changes to tax legislation, while also meeting the need for robust scrutiny.