Payment and Electronic Money Institution Insolvency (Amendment) Regulations 2023

Baroness Kramer Excerpts

Wednesday 6th December 2023 Grand Committee

[The Parliamentary Secretary, HM Treasury (Baroness Vere of Norbiton) (Con)]

My Lords, these draft regulations will expand the application of the existing insolvency arrangements for electronic money and payment institutions so that they apply to firms in Northern Ireland and Scottish limited liability partnerships as they already do in England and Wales, as well as for companies in Scotland.

The payment and e-money sectors have expanded rapidly over the last decade, with payment and e-money institutions now holding more than £17 billion of funds belonging to UK consumers. As the sectors have grown, the Government became concerned that the application of standard insolvency procedures to the failure of these firms was leading to negative outcomes for customers. In particular, administration cases involving these types of firms were taking years to resolve, with customers left without access to their money for prolonged periods and receiving reduced money as a result of high distribution costs.

To manage these risks, the Government legislated in 2021 for a special administration regime to provide for the prompt return of client assets should such a firm fail. This regime was delivered through the Payment and Electronic Money Institution Insolvency Regulations 2021 and the accompanying rules. These regulations established the special administration regime in England and Wales, and for companies in Scotland. This regime created special administration objectives that an administrator will have to follow when conducting an administration of a payment or electronic money institution.

The key provisions of this regime include: first, bespoke objectives for an administrator to ensure the return of customer funds as soon as reasonably practicable, to engage with the relevant authorities and to either rescue or wind up the institution in the best interests of creditors; secondly, continuity of supply provisions that will allow an administrator to keep the firm’s key functions operational for customers; thirdly, provisions to ease the transfer of business processes such that a new firm can take on the incumbent’s business and provide continuity for customers; and, finally, bar date provisions to allow the administrator to set a deadline for consumers to claim and thus enable an earlier distribution of customer funds.

The Government originally consulted on the special administration regime from December 2020 to January 2021. This included not only public consultation but pre and post-consultation meetings with industry groups, including the Banking Liaison Panel, as well as extensive work with the FCA. During the consultation process, most respondents expressed support for the proposals and many provided detailed and useful comments which enabled the refinement of policy. For example, the Government introduced additional steps within the special administration regime rules to require administrators to provide a reasonable notice period before a bar date comes into effect. This will allow time for administrators to communicate bar dates to customers and for customers to make claims.

In responding to the original consultation, the Government confirmed their intention eventually to extend the regime to Northern Ireland and to limited liability partnerships in Scotland, but that this would be to a different timetable, reflecting further work that was needed given differences in insolvency law. The Government therefore subsequently consulted extensively with the Scottish and Northern Irish devolved Administrations to produce the regulations being debated here today.

As noted, this statutory instrument is required to ensure that the regime can effectively apply to Scottish limited liability partnerships and to firms in Northern Ireland, ensuring that the regime applies effectively across the whole of the United Kingdom. For example, these regulations ensure that the relevant provisions of the Insolvency (Northern Ireland) Order 1989 apply to the payment and electronic money special administration regime, as they would to any other insolvency proceedings for Northern Irish firms. This mirrors equivalent provisions which ensure that the relevant provisions in the Insolvency Act 1986 apply in England and Wales. This includes provisions around the duties of officers and the powers of the liquidator.

These regulations do not apply the insolvency procedure to Scottish partnerships, as they are sequestrated under the Bankruptcy (Scotland) Act, which is a devolved matter for the Scottish Government. In addition, Scottish partnerships, apart from limited liability partnerships formed in Scotland, do not currently enter administration and would not be within the scope of the regime.

In conclusion, by expanding the application of these regulations to the relevant firms in Northern Ireland and to Scottish limited liability partnerships, these regulations will ensure that we have robust arrangements to manage the potential insolvency of payments and electronic money firms throughout the UK. I beg to move.

[Baroness Kramer (LD)]

My Lords, this instrument seems to make good sense and we certainly have no intention of opposing it. I have just three questions. First, I understand that it was always anticipated that this regulation would stretch over Northern Ireland and Scotland as well as England and Wales, so it seems very strange that the consultations for Scotland and Northern Ireland were not done in parallel with the consultations for England so that, when the legislation came in, the relevant instruments could all flow immediately, rather than creating a two-year hiatus. Is there any particular reason why that procedure was not followed? It would seem to be the more obvious route.

Secondly, the Explanatory Memorandum makes it clear that there was extensive discussion with the relevant bodies in Northern Ireland and Scotland, and the Minister basically said the same. Was there expected to be any formal approval by the devolved Governments, or was that not relevant in this instance? Can the Minister clarify the position of the devolved authorities in this? From the way she described it, it sounds as though there has been no tension or opposition, but it would be helpful to know whether I have misread that.

My last question is a more fundamental one to do with the hard bar. It is obviously critical to have an efficient and effective insolvency process, and I fully accept that the Government are working to frame that. When I was involved with the transition out of Libor, or dealing with dormant assents, it rapidly became evident that it is very hard to identify anything close to 100% of the relevant claimants. Organisations change their names, they are acquired or sold, there are inheritances—all kinds of actions cloud and obscure relevant ownership and, therefore, relevant claims.

In the two instances that I cited, Libor and dormant assets, a provision was made to ensure that people who appear past the point where the process has fundamentally changed do not lose out because they were ignorant. Some will say that most people were overwhelmingly in support of this in the consultation, but the kind of people who do not know that they have a claim are also probably the kind of people who do not reply to a consultation. The experience with dormant assets and Libor has shown that there is a substantial body of people and, usually, small companies who have a genuine legal claim of some sort. I am interested to know whether any thought was given to making provision for that particular group, which could be excluded by the establishment of a hard bar. I have no idea what the legal responsibilities of the administrators are if a claim is made after a hard bar has been established—whether the claimant loses no matter the basis of their claim. I would like to understand that a bit better.

Autumn Statement 2023

Baroness Kramer Excerpts

Wednesday 29th November 2023 Lords Chamber

[Baroness Kramer (LD)]

My Lords, first, I welcome the noble Baroness, Lady Vere, to the Government’s Treasury Front Bench. Last week we debated a statutory instrument and I failed, until very late in the day, to congratulate her on her new role. I remain mortified by my absence of mind, so I repeat the welcome today. I also compliment her on tackling two of the most difficult topics in the portfolio: central counterparties last week and the Autumn Statement this week. I assure the noble Baroness, Lady Goldie, that no matter what the excellent qualities of her successor, in her portfolio she will be very much missed.

The headline message of the OBR is that, even after the Autumn Statement, and taking into account every government policy and promise, the forecast growth rate for the economy is essentially—and let me quote the noble Baroness, Lady Noakes—“uninspiring” and, to use my own word, stagnating. Only this Government would applaud and congratulate themselves on a Statement with that characteristic.

Living standards for ordinary people have fallen by £2,000 per household. Inflation and high interest are now expected to continue for longer. Indeed, the overhang of inflation will hold back people’s spending power for years. The cost of housing has now become a persistent crisis for many people, especially young people. On my Benches, my noble friend Lady Thornhill took us through the real-life experience, which is dire for so many people who are dependent on housing from housing associations. Typical households will soon be paying over £5,000 a year to service debt, driven largely by mortgage costs, and household saving rates have fallen sharply.

The Government use tax-cutting rhetoric, but ordinary people face a tax-rising reality for at least the next five years, thanks to the freezing of thresholds—the noble Lords, Lord Sikka, Lord Northbrook and Lord Jackson of Peterborough, all referred to this in various ways. Despite the rate cut in national insurance, a typical earner will pay £400 more next year in tax and national insurance, and a middle-income earner will pay £1,200 more. It is instructive, in understanding Conservative priorities, that the highest one-fifth of earners will receive five times as much from the national insurance rate cut as the lowest one-fifth of earners—that is a measure referred to by the noble Baroness, Lady Meacher, who is not yet in her place.

In the same vein, the Chancellor confirmed the dire message from the Department of Work and Pensions for the mentally ill and mobility-impaired members of our community: work from home or lose nearly £5,000 a year in benefits. Mental health charities are sending out almost emergency briefings, warning that home working rarely allows for hands-on support and can add to isolation, and that the costs of heating and wifi, and other necessary supports, can be prohibitive. Over the weekend, I had a conversation with some disabled people; they are genuinely frightened, having fought for the benefits they have got, only to find that they will now begin to lose them if they do not agree to home working, for which they are in no way prepared and often not capable. I do not think this is the way to save £1.3 billion a year in a civilised society.

Public services—already badly degraded, as referred to by the noble Lord, Lord Eatwell, my noble friend Lord Thomas of Gresford, and the noble Viscount, Lord Hanworth—will face real cuts, with, as others have said, the blows falling hardest on unprotected services, such as local government, which support the most vulnerable people. This was referred to in detail by my noble friend Lady Pinnock, who also pointed out that the numbers mean a cut in the clean-up of sewage, which is really going to disturb the many communities who are disgusted by the state of our rivers.

Public borrowing will still be at 94% of GDP at the end of the forecast period, and then only if we assume that fuel duty rises every year with inflation—a point made by the noble Lord, Lord Howarth. Infrastructure spending also has to be curtailed, and the public will have to accept collapsing public services.

Among advanced countries, we are now a high-debt country, and that fits with the issue raised by the noble Lord, Lord Sherbourne. I am particularly concerned and alarmed at the condition of the gilts markets, given not just the Government’s expected gilt issuances of over £200 billion a year but the determination of both the Bank of England and the pension funds to sell off gilts. The OBR worryingly concludes that private sector holdings of gilts will need to be the highest level on record next year and, over the forecast period, the highest sustained level this century. We will depend heavily on foreign buyers, and foreign buyers are volatile.

The Government have offered a carrot to businesses, with full expensing of new investment. That refers to expensing in year one; we have always had expensing over the accounting lifetime of the investment. However, read the whole paragraph; I read it in the same way as the noble Lord, Lord Eatwell. The OBR expects this to be fully offset by the faster retirement of existing capital. Modernisation of equipment and software is surely a good thing, but it is not the dramatic industrial expansion this Government seem to promise as a consequence of this particular tax change. The noble Baroness, Lady Noakes, put it well, describing it as a costly way to achieve a modest increase in investment. Meanwhile, the Government have largely neglected small businesses, which are the backbone of our economy, and certainly failed to grasp the need to wholly reform business rates.

The OBR makes it clear that the economic damage of Brexit—some 4% to 5% economic scarring—remains, and the noble Lord, Lord Sikka, drew attention to this. In her listing of all the events that have shaken the economy, it was notable that the noble Baroness, Lady Goldie, did not mention it, and yet it is the deepest and most permanent scarring, compared to the other features she carefully named—interesting. The OBR also reports that neither this Statement nor other Government policies, nor trade deals, are forecast to reverse the Brexit-driven collapse in our terms of trade by 15%. According to surveys by the Federation of Small Businesses, much of the drop in trade is tied to SMEs ceasing to export. Many British SMEs have been dropped from European supply chains, have lost buyers around the world because they can no longer guarantee European standards, or find the post-Brexit regime too costly and cumbersome.

Productivity remains below the rate before the 2008 financial crisis; frankly, no developed economy can be prosperous with productivity at this persistent level. I like very much the idea suggested by the noble Lord, Lord Londesborough, of a productivity council, and others have proposed ways in which to try to tackle this issue.

Demographics show that we are desperately short of a working-age population, given the size of our ageing population, and we are also short of skills. The situation is made far worse by the vast numbers on NHS waiting lists. My party would have reinstated the bank levy and strengthened the oil and gas windfall tax to tackle those waiting lists head-on, as key to reviving the economy—an issue referred to by my noble friend Lady Pinnock.

The Government’s Advanced Manufacturing Plan, published on 26 November, is positive news and I welcome it. The strategy is a bit scattergun, but it is definitely good news. However, it does not assure that the UK can build the industries of the future at sufficient scale. The plan itself exposes the problem, as referred to by the noble Lord, Lord Eatwell. The Government say:

“Other countries have embarked on large tax and spending sprees to claim a share of the global manufacturing market”.


The Government then claim the moral high ground in not following suit. The truth is that this Government have run this economy so badly that they cannot follow suit to compete with the US and the EU in support for the industries of the future. People might then start talking about Covid and oil prices, but they have hit all those countries as well. We have got to be in that competitive game. The noble Viscount, Lord Hanworth, talked about this in some detail, and I appreciated the advice we got from the noble Lord, Lord Harrington. I have not yet read his report, but I promise to do so immediately, because it sounds fascinating.

In this Autumn Statement, the Government found £27 billion of headroom, as referred to by the noble Lord, Lord O’Neill. But it was not the headroom that came from economic success, a point made by the noble Lords, Lord Londesborough and Lord Desai. The headroom came from two sources. The first is from the revenues that resulted from higher than forecast inflation, especially since the Government chose not to fund the hit to public services from such inflation. The second is from freezing the thresholds for income tax and national insurance. In the Autumn Statement, the Chancellor spent every penny of that headroom.

I do not claim that the Government faced an easy time in shaping the Autumn Statement—although one must admit that they have brought most of it on themselves. But where are the plans to recapture our access to European markets? Where is the investment in the NHS to rapidly cut waiting lists and allow people to return to work? Where is the capital budget to revive our faltering infrastructure? The noble Lords, Lord Macpherson and Lord Willetts, and others, talked about the importance of that public sector infrastructure investment.

I return to my earliest comments. Put the whole package together—the Statement, the promises, the policies—and the output, which surely is the measure, is economic stagnation for at least the next five years.

Resolution of Central Counterparties (Modified Application of Corporate Law and Consequential Amendments) Regulations 2023

Baroness Kramer Excerpts

Monday 20th November 2023 Grand Committee

In summary, these regulations will help ensure that there is a robust resolution regime in place for CCPs, protecting public funds and the financial stability of the United Kingdom. I beg to move.

[Baroness Kramer (LD)]

My Lords, when the original legislation that sits behind all this was debated in the House—for many hours—I remember a conversation afterwards with one of the clerks, who had sat through nearly all of the proceedings. The clerk said to me, “I have sat in this House for years and have been through many debates of all kinds, but this is the first time I have sat through a debate and not understood a single word of the entire discussion”. I am feeling some brotherhood with that clerk at the moment. I remember the past, but I have to admit that I still find utterly daunting the complexity of CCPs and the various pieces of legislation.

I have been digging through my memory and am trying to understand whether these SIs are essentially tidying-up measures designed to give more flexibility to the Bank of England—in its role as the resolution authority—in somewhat changed circumstances, and measures to increase its efficiency. I ask the Minister: is there anything in here to which she would draw our attention as representing a more fundamental change? I admit that I cannot find it, but I thought I should ask the question, given the narrowness of my understanding of this complexity.

As I remember, the resolution of the insolvency of a CCP was structured using a waterfall of liability. First, equity and the CCP came into use, and, after that, if necessary, so did a default fund, to which the clearing members had contributed. My colleague, my noble friend Lord Sharkey, and I pushed on this question, because it seemed apparent to us that the combination of equity and a default fund could work if, say, one clearing member collapsed, or perhaps even two. But, if the collapse were systemic, very quickly only the taxpayer would have the resource to step in. The taxpayer would need to do so immediately to prevent chaos in the financial sector nationally and, probably, globally. The Minister will be aware that virtually all CCPs around the globe essentially have common ownership and, in many ways, need to be looked at almost as a network, rather than a series of individual operations—certainly when one thinks about resolution.

So we asked the then Minister—I believe it was the noble Lord, Lord Sassoon—to clarify why members should not be forced to make bigger contributions in the case of insolvency, above and beyond equity and the default fund, because, obviously, sitting behind CCPs are huge banking institutions and, in other cases, oil companies. As I remember, we were told that, if faced with additional liability, those who operate or participate in the CCPs would choose to use exchanges outside, rather than inside, the UK. So, do these additional SIs empower the Bank of England to require members to make additional cash contributions? I am somewhat concerned that the negative SI—which we are not debating today but which sits with these, as the Minister rightly said—and its cash call powers might have that possibility. I am not saying that I am opposed to that, but I just wonder whether the Minister can do anything to help me understand it and whether there are therefore any implications for the attractiveness of the UK as a location for clearing.

The Minister kindly assured all of us that assets held in the CCPs as margin—collateral, in effect—are fully protected, and there are no implications for netting or off-set. I think I have understood that correctly. But, in a dynamic situation, there must be some adjustment to netting and off-set because, if there is an insolvency, changes in value take place on a moment-by-moment basis. Is there a way to encapsulate how that piece of it works? I am concerned about saying that there are absolutely no implications for netting and off-set, when it is very hard to see that there would not be in an insolvency situation.

I just want to confirm again with the Minister that the “no creditor worse off” safeguard is still fully robust and whether the SIs—the negative and the positive together—weaken it in any way. Is the taxpayer liability, as the ultimate backstop, changed at all by these SIs? Are there, therefore, any implications for public sector net debt? In other words, regarding this liability to act as the rescuer of last resort—it is implicit in CCPs because we are looking at a “too big to fail” situation if we have systemic insolvency—are there any accounting implications for the national debt? Is there any possibility that these changes would drive towards putting the liability on the books?

The notional value of outstanding over-the-counter derivates, which represent the largest body cleared through CCPs, exceeds $600 trillion at any point in time. What is now LCH—I still call it the London Clearing House—dominates that market. A third of that business reflects the clearance of euro-based derivatives under an equivalence granted by the European Commission for UK clearing houses. However, that will last only until June 2025. I know that the City and the Treasury are convinced that the EU will extend that equivalence grant out of necessity, but if it does not, the implications for the City of London will be huge. This is not a time for complacency. I ask again: are there any competitive issues to which we should be alerted in these SIs and which may have consequences for either the EU grant of equivalence or our dealing with the consequences if that grant is not given?

[Lord Livermore (Lab)]

My Lords, I begin by warmly welcoming the Minister to her new role. I very much look forward to working with her in the months ahead.

[Baroness Kramer (LD)]

May I offer my apologies for not having welcomed the Minister to her role? We talk to each other across the House so often that I hardly realised a change had happened; I apologise.

[Lord Livermore (Lab)]

As the Explanatory Memoranda accompanying these two SIs note, the current CCP regime was implemented around a decade ago, in part as a response to the global financial crisis. The Financial Services and Markets Act 2023 has introduced an expanded CCP resolution regime, with that Act giving the Bank of England, as the UK’s resolution authority, what the Government call

“an expanded toolkit to mitigate the risk and impact of a CCP failure and the subsequent risks to financial stability and public funds.”

Preserving market stability is of paramount importance. The UK’s financial services industry plays a vital role in boosting economic growth and delivering skilled jobs in every part of the UK. Almost 2.5 million people are employed in financial services, with two-thirds of those jobs based outside London, and the sector contributes more than £170 billion a year to GDP.

The City of London is one of only two global financial capitals and is at the very heart of the international monetary system. The UK’s reputation and success as a leading international financial centre depends on high standards of regulation as well as a stable and independent regulatory regime. Much of what is being implemented by these two SIs is a carryover between the old and new CCP regimes. Paragraph 3 of the impact assessment outlines that, if these steps were not taken, it

“would mean that there is no protection in place to ensure that the Bank’s powers do not disrupt normal market procedure.”

We therefore fully support both these SIs.

However, I want to ask the Minister a number of questions. First, an issue frequently raised with this type of SI is the sheer breadth of legislation that it tends to amend and the difficulty that those in the sector may face in familiarising themselves with all the changes once they have taken effect. The first of the SIs we are debating today makes a long list of changes to corporate law to ensure that the new Schedule 11 CCP regime will function effectively. The second SI somehow manages to be even more technical; it deals with partial property transfers and the writing down of liabilities, needed to ensure that they do not disrupt the new system’s operation. I ask the Minister, therefore, how interested parties will be, or have been, notified of the contents of these instruments, and when the guidance referenced in paragraph 11.1 of both Explanatory Memoranda will be laid. Will that guidance be laid before Parliament, or at least sent to the relevant parliamentary committees?

Authorised Push Payment Fraud Performance Report

Baroness Kramer Excerpts

Tuesday 14th November 2023 Lords Chamber

[Baroness Penn (Con)]

As the noble Lord has noted, a significant step towards ensuring greater consistency and user experience will be the mandating of reimbursement; we already have 10 signatories to the voluntary reimbursement code. Of course banks need to have proper processes in place to deal with suspected fraud, and I think publications such as the data we had at the end of last month shine a light on how banks are performing and allow consumers to make informed choices about where they bank.

[Baroness Kramer (LD)]

My Lords, UK Finance has published analysis that shows that 78% of APP fraud originates online and another 18%—especially high value —via telecoms. These companies face no reimbursement liability at all. Will the Government act to change that and make the telecoms and online companies liable?

[Baroness Penn (Con)]

As I have said to noble Lords, through the Online Safety Act, platforms and services in scope will be required to take action to tackle fraud where it is facilitated through user-generated content or via search results. They must take preventive measures to prevent fraudulent content appearing on their platforms and swiftly remove it if it does. Additionally, there will be a duty on the largest social media companies and search engines to prevent fraudulent adverts on their services. Ofcom has the power to fine companies failing their duty of care up to £18 million or 10% of annual global turnover, so there will be accountability in the system for online companies too.

Alternative Investment Fund Managers Regulations 2013

Baroness Kramer Excerpts

Monday 13th November 2023 Lords Chamber

[Baroness Penn (Con)]

My Lords, I do remain satisfied and I believe that the Financial Services and Markets Act, which passed through this House earlier this year, updates the tools and framework for the FCA to do its job, now that we have left the EU.

[Baroness Kramer (LD)]

My Lords, the noble Baroness, Lady Altmann, has a Private Member’s Bill before this House, which would create the proper framework for the important investments that she has been discussing. I hope the Government will support her Bill, but would the Minister also introduce a statutory instrument to the House, as proposed by my good noble friend Lady Bowles on many occasions, which would rectify the immediate and emergency situation that is discouraging investment in critical activity in this country?

Bank Accounts

Baroness Kramer Excerpts

Wednesday 19th July 2023 Lords Chamber

[Baroness Penn (Con)]

My Lords, as my noble friend has noted, the Government have a shareholding in NatWest Group, but it is managed at arm’s length and on a commercial basis by UK Government Investments and I do think that is the right approach. My noble friend also noted the role of the FCA. He is right that it is for the FCA and other relevant independent bodies to determine whether any breach of regulatory requirements has taken place—so I will not comment on that, but I would expect them to do so.

[Baroness Kramer (LD)]

My Lords, I gently suggest to the Minister that the issue of PEPs and the issue of people expressing their political views and then being treated badly are in fact entangled one with the other. I am just outraged that Nigel Farage was denied a bank account, but I was also denied a bank account at Chase UK this year because I could not produce physical payslips for my husband, who died 17 years ago. That had to be a specious reason, and I suspect that the real reason is that I am a Liberal Democrat who speaks out on issues in a way that the bank does not particularly like.

So I will just say that the PEP regime has got completely out of hand. It has been outsourced to consultants who make their money from dire and irrational interpretations. Will the Government please press the FCA not just to renew sensible guidance but to make sure that it is followed? Could she please tell it to focus its energies on the real abusers and the real money launderers?

[Baroness Penn (Con)]

Well, I can reassure the noble Baroness that that is exactly what the amendment to the Financial Services and Markets Act requires the FCA to do. It should look not just at the appropriateness of the guidance but at firms’ adherence to that guidance. We have asked it to get feedback from those who are affected by this guidance and take particular account of the impact on family members, which is an issue that many noble Lords have raised with me. We expect the FCA to follow that rigorously. The FCA is required to provide an update to this House on the progress of that work within a few months of it starting, and I am sure noble Lords will pay close attention to that.

Bank of England: Interest Rate Policy

Baroness Kramer Excerpts

Wednesday 12th July 2023 Lords Chamber

[Baroness Penn (Con)]

My Lords, I agree with my noble friend that the Bank of England should be and, indeed, is accountable for the decisions that it makes, but it is not for government to comment on the conduct or effectiveness of monetary policy. He is right that high levels of inflation and, therefore, high interest rates, are causing pain. That is why the Government are taking action to support people at this difficult time, including the mortgage charter, agreed by my right honourable friend the Chancellor, that covers around 90% of the market and gives people options when they are facing higher mortgage rates to make sure that their payments continue to be affordable.

[Baroness Kramer (LD)]

My Lords, I have great sympathy with the Question from the noble Lord, Lord Forsyth. I would like to hear from the Minister that there will be no attempt to compromise the independence of the Bank of England, but that that does not mean that improvements cannot be made; for example, to counter what many of us think is an underlying flaw of groupthink and lack of diversity that leads the Bank to decisions that could be made more optimal with a different set of parameters.

Does the Minister also recognise that the Government themselves could influence inflation far more effectively if they focused on doing so? For example—to name just three actions—they could have dealt with the staff shortages that have so driven inflation; they could have done a great deal more, much earlier, to deal with price gouging by many of our major supermarkets; and they could have kept in place the energy price support scheme, which helped SMEs hold down their prices. Will the Government then take responsibility for their share in not taking those steps to stem inflation?

[Baroness Penn (Con)]

On the noble Baroness’s first point, my initial Answer set out that the Government continue to be committed to the independence of the Bank of England. She is right that government policy can also affect inflation. The OBR said that the energy price guarantee brought inflation down by around two points. Our labour market supply measures, including expanding access to childcare, were the biggest supply side impact in a Budget that the OBR has ever measured. If we were to provide direct subsidies to mortgages, as the Liberal Democrats propose, that would have an inflationary effect, meaning that interest rates would be higher for longer.

Consumer Rights Act 2015 (Enforcement) (Amendment) Order 2023

Baroness Kramer Excerpts

Wednesday 12th July 2023 Grand Committee

[Baroness Kramer (LD)]

My Lords, I confess that usually when I speak on a statutory instrument I am trying to look for why it really should have been in primary legislation, not secondary. In this case, this strikes me as a genuine SI. It is almost a moment of great excitement.

I am very happy to say that these Benches support this measure, which, as the Minister says, enable trading standards to investigate more effectively illicit tobacco sales by small operators and retail outlets and to refer evidence of contraventions to HMRC for action, with potential penalties up to £10,000. We know from past surveys that some 18% of tobacco sales have been illegal. That leads me on to a series of questions to the Minister for further clarification.

At this time of cost of living pressures, some people will be tempted to buy cheaper, illegal or illicit cigarettes. I ask the Minister: is illicit activity increasing now at this time of increasing cost of living pressures, or are we continuing to see a diminution? I would be interested to know what the impact is and whether there has been any significant change that requires aggressive action.

When will the relevant guidance for businesses be published? I do not believe that is available yet. Indeed, when will the sanctions be implemented? Perhaps the Minister could give us some sense of the timetable. There is also no statutory review clause, so how will we know how effective these new powers are? If the powers are granted but are generally not used, I think the Minister knows that potential offenders will feel doubly empowered by new rules that then turn out to have no teeth, so it seriously matters that we track this. When we are tracking, will there be any measures to let us estimate the deterrence effect of the measure? That is probably one of its most important aspects.

Behind illegal sales by small and local outlets there is sometimes just a very small-scale operation, but at times it is very much linked to organised crime on a major scale. How is that link going to be investigated as trading standards becomes more engaged in this process?

The sale of tobacco to children is obviously a serious concern to all of us. Are outlets engaged in underage sales to be a particular target? Will there be any prioritisation, as far as the Minister is aware? Will enforcement involvement include the sale of non-compliant tobacco, blunts and shisha, which have sometimes been seen as a way to manoeuvre around the rules in the recent past?

The tobacco industry has a history of offering to help, or provide intelligence to, local trading standards. I have to say that civic society groups that are attempting to decrease smoking tend to view that with deep suspicion as a conflict of interest, designed to basically push tobacco sales from the illicit side but into legal purchasing rather than discouraging purchasing as a whole, and to improve the industry’s general standing and reputation. I wonder how that is going to be handled.

Does this measure also impact on non-compliant sales of e-cigarettes and vapes? We know these products are increasingly being targeted at non-smokers and youngsters, even though we have little information at the moment on what the effects are of the long-term usage of e-cigarettes and vapes.

The Government have a target to make the country free of tobacco smoking by 2030, and we support their goal of achieving a smoke-free generation. Smoking, as the Minister has said, remains a leading cause of premature death and is related to many severe and chronic illnesses and damages lives, as well as being a drain on the NHS. However, the pace of decline in smoking that followed the 2007 ban on smoking in English pubs and clubs has dwindled. How much is this measure expected to focus on reducing overall smoking? I confess that there is always a slight suspicion when HMRC is involved that the focus will be more on increasing revenues to HMRC than on reducing the overall activity—in this case, just moving it from the illicit arena into the legal arena.

If the Minister could add a little more enlightenment, we on these Benches are happy to support the statutory instrument.

[Lord Livermore (Lab)]

My Lords, we support this measure. I shall reiterate a couple of facts mentioned by the Minister. Smoking is the biggest cause of preventable death in the UK. It accounts for some 76,000 deaths each year, with half of all smokers dying of a smoking-related illness. It is estimated that smoking costs NHS England over £2.5 billion every year. Alongside high-level policy, such as the smoking ban introduced by the last Labour Government in the Health Act 2006, evidence suggests that high duty rates have had a positive impact by reducing the number of people who start smoking and increasing the numbers seeking to cut down and quit.

With 21% of cigarettes sold in the UK currently illicit, clearly the illegal trade in tobacco products undermines these important contributions to public health. It deprives the Exchequer of vital revenue and reduces the deterrent effect of high duty rates. We therefore support harsher penalties for those who seek to avoid paying such duties and commensurate powers for trading standards to tackle those who procure, supply and distribute illegal tobacco and profit from the illegal trade.

I would like to ask the Minister three questions. First, she mentioned that the combined application of fines, powers to seize illicit products and the new sanctions is designed to have a deterrent effect on retail outlets and street-level distributors. This point was also made by the noble Baroness, Lady Kramer. Are there any plans to communicate these powers to potential offenders so that the deterrent effect might be enhanced? Secondly, where illicit product is sold through retail outlets, what data exists on whether the owner of a retail outlet is aware of such sales versus illicit sales carried out surreptitiously by an employee, and therefore whether enforcement measures are always correctly targeted? Finally, what communication, co-operation and co-ordination exists between HMRC and the Border Force to tackle the supply of illicit product at source?

Finance (No. 2) Bill

Baroness Kramer Excerpts

Committee negatived & 3rd reading
Tuesday 4th July 2023 Lords Chamber

[Baroness Kramer (LD)]

My Lords, this is a Bill of limited scope, despite its enormous size and the Explanatory Notes. It covers a range of issues and, typically, we have debated nearly all of them in this House before, so I will limit my comments. There is a fair amount in the Bill that is not satisfactory.

I start with the issue on which the noble Lord, Lord Leigh, focused: tax credits for research and development. As this House knows, the Government scrapped their original and rather generous scheme because, they claimed, there was so much fraud in the system. I would have preferred that they found a way to deal with the fraud, rather than remove that support to a wide range of SMEs. The Bill brings in a tax credit scheme for SMEs that are heavily engaged in R&D, but it ignores the many other SMEs that had planned on an understanding that the old scheme would be available to them, made a series of investments and undertook a great deal of development. Those programmes have now been interrupted or shelved, because the cuts have not just deprived those companies of tax relief but had the knock-on effect of drying up private funding. There are limited financing options for growing SMEs in the UK.

My colleagues in the other place put down amendments to require a review of the impact of the change in reliefs on SMEs—on their funding, job creation and, more broadly, UK economic growth. The flip-flopping which this policy represents is one of the reasons for the pervasive uncertainty that is undermining growth in the UK economy. I would be glad if the Minister could tell me whether there will be a broader review.

I will pick up an issue that the noble Lord, Lord Eatwell, focused on. The Bill includes an increase in the annual tax-free allowance for pension contributions and the abolition of the lifetime allowance. This should stem the loss of senior doctors, military personnel and others in the public sector who had been put in the ridiculous situation of receiving incremental salary only to find that it triggered incremental taxes far greater than that salary. I honestly suspect that this could have been done through a much more targeted and far less costly set of reforms. It really feels wrong to spend £1 billion a year on some of the best off in our workforce. Will the Government look at a much more targeted approach to achieve this goal, rather than this wider, sweeping giveaway? The scheme fails to touch even the tip of our labour shortage problems, which is where one would have thought this money would be focused. Right now, businesses in the UK and the public sector are foundering for lack of staff.

We have talked endlessly about the windfall tax on oil and gas, and I will not repeat my concerns in that arena. My colleagues in the other place sought to strengthen this country’s green policies with amendments to the Bill to allow generators of renewable energy to offset money reinvested in renewable projects against the energy generator levy. It is offensive that the fossil fuel industry can offset investments, but not renewable generators. When I read this, I felt it was no wonder that the noble Lord, Lord Goldsmith, was so scathing about the current environmental commitment in his resignation letter.

Ironically, the Bill abolishes the Office of Tax Simplification, presumably because it is viewed as unnecessary, but it does so just as it introduces far more complexity into the tax system—a point highlighted not by my colleagues but by Harriett Baldwin, Conservative chair of the Treasury Select Committee. As the noble Lord, Lord Leigh, said, the two top-up taxes designed to discourage profit shifting are welcome but, as he pointed out, they are not going to deliver a lot more money to the Treasury. It is good to get thinking about this area and to try to work through the complexity; but let us not pretend that this will be a flow of cash into the Treasury’s coffers.

Frankly, the problem with the full expensing of capex is that it is a short-term stimulus for three years. All that means is that you upfront expenditure and then drop off expenditure when that period is over. The benefit is an extremely limited stimulus.

I received an email very late in the day from the Local Government Association. I will be very quick in mentioning its contents. It is a real expression of regret from the industry, which the Minister should hear, that the Bill was not used to deal with concerns about the implementation of the building safety levy. As the Minister will know, that was originally designed to deal with high-rise development activity, reflecting the greater building safety risk. However, the Government have broadened its scope to cover frankly all development. It could be rolled into other forms of taxation, such as the residential property developer tax. As it stands, it requires

“309 local authorities to set up separate, individual processes to act as a collection and administration agency for the Levy—with all funds raised being returned to Government.”

It is hugely inefficient and very unreasonable. Frankly, if we kept the Office of Tax Simplification, it would have jumped on that issue.

From listening to the Government in the debates on the finance Bill, one would have assumed that all was well with the UK economy. My great fear is that the Government simply do not understand how dire the cost of living crisis is for so many people. Recent reports that many have exhausted their Covid savings is not good news. The voluntary mortgage contract, much touted by the Government, will delay for some the immediate impact of interest rate rises but those high rates—they will be even higher because of the measures people will undertake—will still undermine family finances for both owners and renters.

Inflation in the UK remains stubbornly high. By contrast, eurozone inflation has fallen to 5.5%. Last week, the Minister claimed that lots of other European countries had higher inflation than the UK. I looked at the numbers, and I realised that she and the Government have taken to comparing the UK not with major economies such as Germany or France but with Hungary and Estonia. When did our economy, in the Government’s eyes, become comparable with those of Hungary and Estonia rather than those of other G7 countries?

Core inflation, which excludes volatile food and energy prices, rose last month to 7.1%. That is the number that is driving interest rate increases and that captures the sheer economic incompetence of this Government, as well as their wholly inadequate trade relationship with Europe post-Brexit: the sharp drop in exports, British firms removed from supply chains, a collapse in business investment, the fall in sterling, customs friction driving up the cost of imports, labour shortages, and incredibly low productivity.

This finance Bill is a missed opportunity. It could have dealt with so much. It seems to confirm that the Government’s primary goal is to engineer a pre-election tax giveaway next year because the fiscal rules might possibly allow it. All I can say to the Government is that the British people will not be fooled.

--- Later in debate ---

[Baroness Penn (Con)]

My Lords, I thank all noble Lords for their contributions to the short debate that we have had on the finance Bill today. Noble Lords reflected on the economic circumstances in which we find ourselves. We recognise that high inflation increases costs for households and businesses and that, as my right honourable friend the Chancellor has said, low inflation is necessary for growth. The energy shock from Russia’s unlawful invasion has been felt more in the UK, partly due to our historic dependence on gas, and domestic factors such as record tightness in the labour market and high inactivity rates have put pressure on UK inflation, but that does not remove the fact that we are not alone in facing the global challenge of high inflation rates. Despite this, the IMF has said that the UK has taken decisive and responsible steps to tackle inflation, and all major forecasters expect inflation to fall this year.

Turning to noble Lords’ comments around the level of taxation in our economy and the suggestion—I am not sure whether it was from the Labour Front Bench—that we should change the decisions that we made on tax thresholds to consolidate our public finances and that this should be the route that we take to help people with the cost of living, as my right honourable friend the Chancellor has made clear, the Government’s number one priority is reducing inflation. Not only will this be the most effective tax cut for people and businesses across the UK, but we must not to do anything to prolong inflation, which unfunded tax cuts would only fuel.

It is important to reflect on the action taken since 2010. We have increased the personal allowance and the national insurance contribution threshold above inflation, taking millions of people out of paying tax altogether. Consequently, we have some of the most generous starting allowances for income tax and social security contributions in the OECD and the most generous in the G7.

Outside the tax system, to support household we have focused our help on those who are most vulnerable to the impact of rising prices. Our cost of living support includes the energy price guarantee, cost of living payments and the household support fund, as well as uprating benefits in line with inflation. I say to the noble Baroness, Lady Kramer, that the Government recognise the impact that rising inflation and increases in the cost of living are having on households across the country. That is why cost of living support for households totals £94 billion, or around £3,300 per household, on average, this year and next, which represents one of the most generous packages of support in all of Europe. I say to the noble Lord, Lord Sikka, that looking at the impact of the decisions made from the Autumn Statement 2022 onwards, government support for households in 2023-24 provides low-income households with the largest benefit in cash terms and as a percentage of income. On average, households in the bottom half of the income distribution will see twice as much benefit as households in the top half of the income distribution in cash terms.

My noble friend Lord Leigh welcomed the implementation of the G20/OECD pillar 2 rules. We take our international obligations very seriously. We were instrumental in negotiating this agreement and these rules and as such do not see them as at odds with our sovereignty. We retain sovereignty to set our corporation tax rate as one of the lowest in the G7 and to use important tax levers to boost investment in the UK, including our world-leading full expensing regime and our generous R&D tax reliefs. In fact, pillar 2 will boost the international competitiveness of the UK because it places a floor on low and no tax rates that have been available in some countries. It is designed to protect against the risks of harmful tax planning by multinational groups. As my noble friend said, it is important that the UK legislates for these rules now but, to repeat the assurance that the Financial Secretary to the Treasury gave in the Commons, we will provide an update on pillar 2 implementation as part of the forthcoming fiscal event in the autumn and, if necessary, in the spring, too. This will include the latest revenue forecast from the OBR and an update on the status of international implementation.

I turn to my noble friend’s comments on research and development relief. He asked whether I would have regard to the Chartered Institute of Taxation’s detailed comments, in particular in respect of the new powers HMRC has to remove a claim. While it is correct to assert that customers do not have a right of appeal, they do have a new statutory right of representation to provide HMRC with evidence within 90 days if they think the claim has been removed in error. They also retain the right to apply for judicial review if they do not think HMRC has applied the process correctly.

My noble friend also raised concerns about the R&D compliance check. The Government acknowledge that there is currently a high level of non-compliant claims in R&D tax reliefs and that it is right that HMRC takes action, as I think my noble friend also recognised. HMRC has increased the action it is taking, which means addressing more of the non-compliance. As part of this, it has been rapidly upscaling its numbers of people, and this can sometimes come with teething problems. HMRC ensures that less experienced caseworkers can call on technical support or specialist advice from more senior colleagues. HMRC will continue to work with stakeholders to ensure that the department is managing checks professionally and in line with the HMRC charter, and I would happily hear any further representations by my noble friend or others on how we can ensure that we are delivering in this area.

On company tax rates, the noble Lord, Lord Sikka, asked how many companies will pay the full 25% rate, which is an increase in the headline rate of corporation tax. The noble Lord is absolutely right that the small profits rate will keep the rate at 19% for companies with profits of £500,000 or under, and marginal relief is available for companies with profits from £50,000 to £250,000, meaning that companies will pay somewhere between 19% and 25%. That means that 70% of actively trading companies will not see an increase in the rate of corporation tax they pay, and only 10% will pay the full rate.

I am grateful to the noble Lord for giving me the opportunity to make those points. Sometimes, there is concern among those in business that our corporation tax rate is either uncompetitive or targeting smaller businesses. What we have done in changing the rate is to ensure that businesses pay their fair share of returning our public finances to a sustainable footing after the shocks of Covid and the invasion of Ukraine. We have reinstated some of those exemptions to ensure that the smallest businesses do not face those burdens. That is entirely how we have designed our approach.

[Baroness Kramer (LD)]

Can the Minister tell us—this is not to make a point but just for clarification and to understand the numbers better—is it 70% by number of companies or 70% by a value number of some sort, such as an asset value, a market value or a revenue generation value? How is that number calculated?

[Baroness Penn (Con)]

What I have before me is that 70% of actively trading companies will not see an increase, so I would take it as the former. If it is calculated in a different way, I will write to the noble Baroness to clarify that.

[Baroness Kramer (LD)]

To strengthen the Minister’s own point, it might be helpful if we had a calculation that gave us a better feel. One multinational could easily produce revenues many times those of dozens and dozens of small companies, so she might be getting a bigger tax take than the number that she is using implies.

[Baroness Penn (Con)]

The noble Baroness is exactly right. The increase in the headline rate of corporation tax makes a significant contribution to our public finances and to the consolidation of our public finances after Covid. All I meant to say is that, for some of the reasons set out by the noble Baroness, we have been able to exempt smaller businesses from that increase while also ensuring that bigger businesses—which often benefited a large amount from government support put in place during the pandemic—contributed their share to returning our public finances to a sustainable footing.

The noble Lord, Lord Sikka, also asked why HMRC’s budget had been cut. HMRC will receive a £0.9 billion cash increase over the Parliament, from £4.3 billion in 2019-20 to £5.2 billion in 2024-25, so I do not quite recognise the picture that the noble Lord has put forward. HMRC’s budget includes funding to tackle avoidance, evasion and other forms of non-compliance, to deliver a modern tax system and to support a resilient customs border.

I turn to another area of tax, the energy profits levy, which, I remind noble Lords, has helped to pay a significant proportion of households’ and businesses’ energy costs through the support that we have been able to provide. I want to be clear to noble Lords that the allowances in place are not a loophole. The OBR’s latest forecast is that the EPL will raise just under £26 billion between 2022-23 and 2027-28, inclusive of the EPL’s investment allowances. That is on top of £25 billion over the same period from the permanent regime for oil and gas taxations, totalling around £50 billion.

Abolishing the investment allowance would be counterproductive. The UK is still reliant on oil and gas for its energy supply and will be for several years; reducing incentives to invest would lead to investors pulling out of the UK, damaging the economy, causing job losses and leading to lower tax revenue in future.

My noble friend Lord Leigh asked about the impact of the price floor and the Government’s long-term plans for energy security. By introducing the energy security investment mechanism, the Government are providing certainty about the future of the energy profits levy. This allows companies to invest confidently in the UK and supports our economy, jobs and energy security.

On the long-term fiscal regime for oil and gas, the Government are also conducting a review to ensure that the regime delivers predictability and certainty, supporting investment, jobs and the country’s energy security. I wonder whether that predictability and certainty would be covered in Labour’s review of business taxes. I do not think the oil and gas sector sees predictability and certainty in its policy approach in recent weeks.

I turn to the electricity generator levy. Unlike the EPL, this not a tax on total profits that is calculated after the recognition of total revenues and costs. Instead, the EGL is payable only on the portion of revenues that exceeds the long-run average for electricity prices. The Government took into account the potential impact on investment when setting the benchmark price.

The Government are supporting renewables deployment through a range of policy levers, including the contracts for difference scheme, through which generators have received almost £6 billion net in price support to date. The electricity generator levy will not be payable on renewable generation produced under contracts for difference, which is the Government’s main form of support for green energy and will account for most new large renewable generation.

I turn to the point raised by the noble Lord, Lord Livermore, on non-doms. The Government recognise that issues of taxation come down to fairness. We need to have a fair but internationally competitive tax system which brings in talented individuals and investment that contribute to growth. Reforming the non-dom regime could potentially damage the UK’s international competitiveness, leading to a loss of international investment and talent. There is a great deal of uncertainty over the wider economic impacts of complete abolition.

Non-doms play an important role in funding our public services through their tax contributions. They pay tax on their UK income and gains in the same way as everyone else, and they pay tax on foreign income and gains when those amounts are brought into the UK. The latest information shows that that non-UK domiciled taxpayers are estimated to have been liable to pay almost £7.9 billion in UK income tax, capital gains tax and national insurance contributions in 2020-21 and have invested over £6 billion in the UK using the business investment relief scheme introduced in 2012.

Income Tax Threshold

Baroness Kramer Excerpts

Tuesday 4th July 2023 Lords Chamber

[Baroness Penn (Con)]

On the first point, I absolutely agree with the noble Lord. As I said in answer to my noble friend, bringing inflation under control is the most effective tax cut we can give to families across the country. On the second point, I will have to check the record; it was at least a decade before I was born.

[Baroness Kramer (LD)]

My Lords, I do not suggest cuts in the tax take in our current financial condition, but I question the distribution of the tax burden. Can the Government explain why they have chosen to use the threshold rather than the tax rate? By using the tax rate, they could certainly target the higher level of tax against those with the broadest shoulders most able to carry it. By using and freezing the threshold, they have dragged into the higher tax rate many people on very middling incomes, who are now experiencing the highest increase in taxes, according to the IFS, since 1979. Those are the people who, as the noble Lord, Lord Balfe, said, drive our economy, but they are also the group suffering severely from the cost of living increases.

[Baroness Penn (Con)]

I reassure the noble Baroness that the income tax system is still highly progressive: the top 5% are projected to pay nearly half of all income tax in 2023-24 and the top 1% are projected to pay more than 28% of all income tax. The noble Baroness is right that those on middle incomes are feeling the squeeze; that is why we are absolutely focused on supporting the Bank of England in its mandate to get inflation down.