Corporation Tax (Northern Ireland) Bill

Ian Swales Excerpts

Tuesday 27th January 2015 Commons Chamber

[Ian Swales (Redcar) (LD)]

I congratulate the right hon. Member for North Shropshire (Mr Paterson) and the Secretary of State on getting this proposal into the starting gate and add the support of the Liberal Democrats to getting it to the finishing post.

I recognise that I am no expert on Northern Ireland. In fact, I think this is the first time that I have stood up in the House to speak on Northern Ireland issues, and I ought therefore to pay tribute to one of my illustrious predecessors as Member for Redcar, Mo Mowlam, who of course played an important role in the progress towards peace in Northern Ireland.

The hon. Member for Foyle (Mark Durkan) in his extensive speech talked a lot about the detail that needs to be worked out. We recognise that that is the case, and there may be some devils in that detail. This could turn out to be quite complex when we come to look at the interactions of this proposal with all the various existing proposals. We all know that tax competition works between countries, and it is particularly evident where there is a hard border. I vividly remember the Belgium-Luxembourg border when I lived over there, where there were about 20 garages all on one side of the road due to the difference in petrol taxes. The hon. Member for South Down (Ms Ritchie) again raised today the question of VAT tourism, and I pay tribute to her for her campaign, particularly as I also represent a coastal community and would very much like to see the same move.

The Republic of Ireland has a headline corporation tax rate of 12.5% and that is what we are mainly addressing here today. However, it is not the 12.5% that gets all the US technical companies to register in Dublin and that gets Marks and Spencer doing its mail order through Dublin; instead, it is some very special arrangements in Ireland, and I certainly would not want to see future pressure to align Northern Ireland with those arrangements. I believe the Ministers should be addressing some of those arrangements in Dublin rather than opening any doors towards further alignment with what happens in Ireland, because I think we all recognise that some of those arrangements are deeply damaging to the UK as a whole.

I noted that Northern Ireland Members rightly referred in their speeches to the unemployment rate and the economic situation in Northern Ireland and the reliance on foreign direct investment. I very much identify with that as an MP from the north-east of England. In unemployment and other such criteria, in all the tables where Northern Ireland is top—or bottom, if we want to look at it that way—the north-east of England tends to be the next region. My constituency is 31st out of 650 for unemployment and my biggest private sector employers are Saudi Arabian, Korean, Thai, Indian and Singaporean, so I know what foreign direct investment means and how important it is to areas like mine.

Therefore, I have a question for Ministers. I recognise that foreign direct investment is not a zero-sum game but there is an element of that. If a company is choosing where to go, it only makes one decision. What assessment have Ministers made of the effect on the rest of the UK of encouraging more foreign direct investment into Northern Ireland? I am not saying I disagree with this measure, but I think it is important to note that in some cases it will switch investment from other parts of the UK. Indeed, as the hon. Member for Foyle said, because of the different corporation tax rate the rest of the UK will, in effect, become a foreign country and Northern Ireland may attract investment from UK companies that otherwise would have gone elsewhere in the UK. That is an important thing to remember and to consider.

I am also concerned about potential further devolution of corporation tax and, ultimately, a race to the bottom, as the hon. Member for Foyle said. I am particularly concerned about the situation in respect of Scotland and the north-east of England, which of course borders Scotland. The logic of this measure—that we have to move towards aligning corporation tax rates in Northern Ireland with those in southern Ireland because those countries share a border—suggests that we should not allow Scotland or Wales to deviate from the corporation tax rate on this large island that we inhabit. It would be argued in this place that we need to align the English rate with the Scottish and Welsh rate. I very much support what the hon. Member for Foyle said—that that may be a path we want to go down, but let us do so knowingly, at least. A different rate in Scotland could be very damaging to the north-east, which, I repeat, is England’s poorest region.

It has rightly been pointed out that corporation tax rates are not the only consideration. According to an Ernst and Young study, corporation tax comes only sixth on the list of things that foreign direct investors look for. However, it is very important to half of them and has some importance to most of the rest, so it is not unimportant—it is just not the most important thing.

I am sure the Minister is expecting me to talk about avoidance possibilities, given that I often do in such debates. I note that the Government have included various measures in the Bill to exclude activities such as investing, and trades such as lending and property, and the Bill does not give the Northern Ireland Executive power over reliefs and allowances. However, once we get into the detail, we may find that if the rate goes down to 12.5%, the way some of the reliefs and allowances in the UK are drawn means that they will interact strangely. HMRC needs to check all that out as part of the process.

It is always worth applying a bit of game theory when looking at new taxes, tax reliefs or changes in taxes, because if it is possible to imagine a tax avoidance scenario, it will probably happen. Does the Minister recognise that the Bill puts a new transfer pricing interface in place? At the moment, when corporations transfer goods backwards and forwards to Northern Ireland, there is no corporation tax difference, so there is no incentive to do anything strange with transfer prices. This arrangement will give an incentive to shade transfer prices in a particular direction. Does the Minister agree, and what resource will he put in place to deal with that? According to a Public Accounts Committee hearing that I participated in, HMRC has less resource on transfer pricing than each of the big four accountancy companies, so it is not an area in which we are currently heavily staffed.

Of course, transfer pricing is not just about products; it is also about royalties and management fees, and I imagine that if a bank has a back office in Northern Ireland, it will become a highly profitable operation under these new arrangements, because there will be an incentive for the management fees to be as high as possible.

Can the Minister confirm that corporate financing operations will not qualify for the lower rate, which might allow profit shifting of the sort we see to Luxembourg and other countries? Will he confirm that such operations cannot be concealed within a genuine trading operation? Here I am thinking of the regular movements of capital and interest within a manufacturing company, for example. Can he confirm that there will be no hidden financing and profit-shifting operations through interest payments and similar means?

The Bill is designed to encourage foreign direct investment, but in effect the rest of the UK also becomes foreign from a corporation tax point of view. What assessment has the Minister made of the moves that might happen from the rest of the UK and the loss of tax that they might incur? The expression “brass plate” has been used many times today. I believe that the Bill is written in such a way that that will not happen, but I hope the Minister will confirm that.

The legislation will be tightly drawn, but I ask that the Minister resist any further calls from the Northern Ireland Executive to compete with Dublin on special arrangements or to get power over reliefs, which would create new complexity within the UK tax system.

I do not think it right to say that the cost of these measures will be the entire difference in the tax rate on the tax base of Northern Ireland. If that were true, there would be no point in doing this. The whole point is that these measures will encourage economic activity in Northern Ireland, so there should be quite a payback of tax; otherwise, why do it? What assessment has been made of that?

Can the Minister say a bit more about the constraints that the UK Government are putting in place on the overall cost of these measures? What constraints, if any, are there on the rate that the Northern Ireland Executive could choose? Would zero be allowable? I should be interested to hear the Minister’s answer.

I am conscious that other Members, particularly from Northern Ireland, wish to speak. I look forward to hearing the Minister’s response.

--- Later in debate ---

[Nigel Mills (Amber Valley) (Con)]

It is a pleasure to follow the hon. Member for Belfast East (Naomi Long). I should like to begin by saying that this measure is entirely the right thing for Northern Ireland. Those of us who serve on the Select Committee have all seen how hard it is to compete when a neighbour a short distance away can offer a much lower rate of corporation tax. I wholeheartedly support the notion that we should allow Northern Ireland to choose its own corporation tax rate, especially on trading profits. In fact, I would even support the principle that lower business taxes drive growth. Over the past five years in the UK, we have reduced our corporation tax rate from 28% to—in a couple of months’ time—20%, which is important in helping to drive growth in the whole country.

That leads me to my first concern. Part of the argument for making that reduction is that we recover money that we lose in corporation tax by attracting more investment: more companies make more money and pay more corporation tax as there are more profits. Even though corporation tax is set at a lower rate we begin to recoup some of the costs. With more employment, we would expect increases in income tax and PAYE. Greater economic activity will result in more VAT, and more property transactions will give rise to more stamp duty. Those are the key ways of recovering what is lost through lower corporation tax.

It is not entirely clear how much of those increased tax takes will go to Northern Ireland and how much will be kept by the UK as a whole. When the final deal is done and a calculation is made of by how much budgets are reduced, that net cost needs to be worked out to ensure that it is fair to Northern Ireland and fair to the rest of the UK. There will need to be a breakdown of the overall impact of behavioural change as a result of a lower tax rate in Northern Ireland, if that is what results. I assume we expect to see a rate of 12.5%, or perhaps a little lower to make it competitive.

We seem to be devolving taxes haphazardly, creating a mishmash. We ought to look forward a few years and ask, for all our taxes, “What should our tax system look like? What taxes will we devolve and to where? How can we best achieve a sustainable, sensible tax system as a result of that?” One way of doing that would be to set a federal income tax rate and a federal corporation tax rate that apply throughout the UK. Once those were set, each area could choose its own rate as well, so there could be a federal corporation tax rate of, say, 10% and Northern Ireland could choose 0% as its local rate, and England could choose a rate as well.

What we have in this Bill is a complex way of doing that for one area of the country. I accept the reason for doing that just for Northern Ireland initially, but if there is pressure from Scotland and Wales, this mishmash of a system will be hard to act on and it will be very unfair on England. How will we work out the rate that we want? With the devolution of corporation tax, I suspect that the easiest competition will be between Northern Ireland and the rest of the UK, because we have the same currency, much the same legal system, the same VAT system and the same income tax system. In fact, for almost any sensible business, the east midlands is a far more attractive place to do business than Northern Ireland. I would say that, because my constituency is there, but we have the right skills, the right location and all manner of advantages.

[Ian Swales]

Does the hon. Gentleman agree that the sort of business decisions we are talking about are long-term decisions, and if the tax system appears to be moving around wildly among countries year by year, companies will not use it because they will not be able to rely on a long-term future?

[Nigel Mills]

The hon. Gentleman is right. That is why we should look ahead and see what our tax system should look like. Nobody in the UK wants a business man with a business based in Amber Valley or Redcar to think, “I could save half my corporation tax by moving to Northern Ireland.” That may help Northern Ireland, but it will not help the mainland. It will not help UK plc to attract more inward investment. We want fair competition. I accept that competition is good and that if we get investment somewhere in the UK, that is better overall, but we want investment coming in from outside, not moving around within the UK.

As a matter of fairness, if parts of the UK are to compete on corporation tax, those parts should not vote on the rate elsewhere in the UK. If Northern Ireland wants to set its own corporation tax, let us let England, Wales and Scotland set ours. If we devolve it further, the same fairness should apply. People in my constituency should be able to say, “Yes, we are competing, but we can choose whether to compete or not.” I hope that before April 2017 some sort of mechanism is in place to ensure fairness. Devolving taxes without first settling that is dangerous in constitutional terms. I am not sure it would be tolerable for Scottish MPs, for example, to set their own income tax and then to set ours as well. I accept that that is probably more of a problem than corporation tax, but it is an example of the unfair tax system that we could end up with.

An excellent Library paper that runs through the research shows on page 13 that, looking at the behavioural response to a lower rate of corporation tax in Northern Ireland, even by year 4 we would see that profit shifting from the rest of the world into Northern Ireland would have an impact of £30 million a year, but that profit shifting from Great Britain to Northern Ireland would have an impact of £60 million a year. That is twice the impact of new foreign direct investment. Tax-motivated incorporation would have a potential impact of £45 million —even more than foreign direct investment into Northern Ireland. I hope that the measures in the Bill will reduce the likelihood of the latter possibility. The easiest way of competing will be to move around within a regime rather than try to attract investment into the UK that would not have come here in the first place.

That leads me to look at how cluttered some of these proposals will make the corporation tax system. This is not a simple set of things to understand. A company that has its tax base in Great Britain and Northern Ireland will have to work its way through some fairly complex situations. There were simpler options. We could have just had an allocation key that worked out one profit and then how much of it would be taxed in Northern Ireland and how much in the rest of the UK, based on employees and sales. It could have ended up a bit like the awful EU tax base that was thought up. However, within the UK, that might have worked, being easier to understand and removing some of the distortions of attempts at tax avoidance. Taxation based on sales is much harder to fix.

There are still some gaps in these proposals. It is absolutely right that we have stopped allowing finance companies to get the lower tax rate. Otherwise every large corporate would have had a finance company based in Belfast doing its finance for the rest of the UK and moving profit over there artificially. That would have been unacceptable.

How do we stop other things happening that we might not like? What about intellectual property planning? If I move all my brand names over to Northern Ireland, can I charge large royalties in the rest of the UK and artificially move profit in that way? That is not caught by the restrictions in the Bill. It is not moving jobs or creating real value; it is just moving assets around a regime and trying to get a tax advantage.

On the flipside, there are some wrinkles in how we have tackled the finance company exemption. Under the definitions in clause 17, I am not sure what happens in the case of a company trading in Northern Ireland that makes a lot of profit, ends up with some cash at the end of the year, and thinks, “Okay, I’ve got another important investment project in 18 months’ time, so perhaps I’ll lend this cash around to somewhere else in my group of companies and make a bit of interest income.” It is then engaging in a lending activity. Has that blown it out of the whole lower rate because it now has an excluded activity, or is only the interest taxed at the higher rate, and because it is a very small part of its activity, that is okay? I am not quite clear about how we tackle real, practical situations such as that.

I am not convinced that the situation for small and medium-sized companies is entirely fair. The hon. Member for East Antrim (Sammy Wilson), who is no longer here, said that some construction companies in Northern Ireland end up with lots of building work on the mainland because that is where the work has been. If, during the year, such a company gets a big contract on the mainland, it then has to track whether the profit from that becomes more than a quarter of its total activity. If it is 26% by the year end, it pays 20% corporation tax on the whole of its profits, whereas if it is 24% at the year end, it pays 10% on the whole of its profits.

I accept that for the vast majority of SMEs that do not trade on the mainland and operate just in Northern Ireland, that will be a very simple situation, and one small contract will not hurt. However, I suspect that SMEs trading in both areas will be in a worse position than a large company, because a large company that had 26% of its activity on the mainland would still get the lower rate for most of its profits, but a small company will lose it for most of its profits. Perhaps there could be a way of allowing an SME to elect to be in the large company regime if that better reflects its needs. Another option would be to have two separate companies and split their activities, but that does not strike me as a very easy situation. There are some issues that may lead to unintended complexities.

We need to think through exactly which activities we do not want to qualify for the lower rate. We have a new diverted profits tax coming, whereby if someone moves an activity that ought to be somewhere else, we will try to tax it at a higher rate than our UK standard rate. Under one of the provisions, someone who is being taxed at a rate of less than 80% of the UK rate will be caught. Clearly, Northern Ireland is likely to have a tax rate of less than 80% of the main UK rate. If a Northern Ireland company has an internet trading business or a mail order business in Belfast and takes careful steps to avoid having an establishment on the UK mainland, could that company be caught by the diverted profits tax, triggering a higher rate than if it was in the UK? How can we stop people artificially putting trading activity using very few employees into Belfast, rather than doing it on the mainland, to get the lower rate? I accept that no one wants the rate to apply to activity involving no employees, but I sense that certain activities that do not require much labour might be moved, which is not what we intend.

I welcome the principle of the Bill. I have some concerns about rushing it through now without thinking about how it affects the UK as a whole—we need to do that if we are to get a tax system that is sustainable in the long term—about how cluttered we are making our corporation tax system and about whether things in the Bill’s details might make the system work in a way that we do not want, but I suggest that we think through such issues in Committee.