Committee: UK government must ensure it has legal authority to charge fees

The call comes in a new report published after the committee considered the Certification of Fuels and Fireplaces (Charges) (England) Regulations 2025 (the Fuels and Fireplaces Regulations).

This instrument imposes fees for the environmental assessment and certification of fuels, fireplaces and stoves which must be certified before they are sold in England. It corrects a situation whereby these fees have been charged without statutory authority for several years (potentially for over 30 years in one case).

The committee acknowledges that the Department for Environment, Food and Rural Affairs (Defra) acted promptly to correct the situation once it had identified the issue at the end of 2024.

The committee also welcomes the fact that Defra provided an explanatory memorandum (EM) which followed guidelines issued by the committee for such corrections last year. The EM is clear about how the lack of statutory authority for the fees charged was identified and how Defra intends to resolve the issue, although key aspects of the situation are still being investigated.

The Defra instrument is the latest in a series of instruments where government activity has been found to be, or potentially be unlawful and subsequently needs to be corrected.

The committee has highlighted examples in previous reports, most notably in its third report (fees for English language proficiency tests charged to people applying for UK visas), and provides additional examples in this current report. The instruments cover different policy areas and different government departments.

Defra told the committee that the Cabinet Office was “actively monitoring” how the potentially unlawful government practices arose and how individual departments are tackling the situation.

In response, the committee suggests that there is a case for oversight and coordination at the centre of government not just to ensure consistency in any remedial actions taken, but also to identify potential lessons from the different scenarios to prevent future recurrence.

It further suggests it may also be beneficial for the Cabinet Office to instruct departments to check that there is a valid legal basis for all fees currently being collected and to suggest to the Devolved Governments that they take similar action.

The committee concludes that the House may wish to explore these issues further with the minister.

Lord Thomas of Cwmgiedd, member of the Secondary Legislation Scrutiny committee, said: “A fundamental tenet of the rule of law in any democracy is that all and any actions by government must be administered on a lawful basis.

“Whilst it is regrettable that government-backed fees are being charged in unlawful or potentially unlawful situations, it is of course right that legislation should be brought to correct the position.

“We take no issue with that, particularly in this case where Defra has followed our guidance to ensure that the explanatory memorandum accompanying the instrument is completely transparent in how the situation arose and its plans to address it.

“However, this situation needs to be addressed centrally with a consistent remedial approach from the various departments and it needs to be overseen by the Cabinet Office.

“We welcome the indication that the Cabinet Office is ‘actively monitoring’ individual departmental responses, but this does not go far enough and that is why we have suggested that the Cabinet Office take a more proactive role and that the House explore this further with the minister.”