National Insurance Contributions (Termination Awards and Sporting Testimonials) Bill

James Cartlidge Excerpts

2nd reading: House of Commons & Ways and Means resolution: House of Commons
Tuesday 30th April 2019 Commons Chamber

[The Exchequer Secretary to the Treasury (Robert Jenrick)]

I beg to move, That the Bill be now read a Second time.

This is a small and narrowly drawn, but nonetheless important, Bill. It aims to provide a welcome simplification of the tax treatment of termination awards and sporting testimonials. The corresponding rules determining the income tax treatment of termination awards and sporting testimonials were legislated for in the Finance Acts of 2016 and 2017. At that time, it was made clear that we would return and replicate those rules in national insurance legislation in due course, to ensure that there was not a persistent misalignment. Implementation of the measures in this Bill will replicate those rules in national insurance legislation. By the nature of national insurance, it is required to have a separate piece of legislation from the Finance Bill.

These measures were first announced at Budget 2015. They were then consulted on and published in draft in December 2016. They were subsequently reconfirmed at Budget 2018, so it is reasonable to say that they are expected by those affected and have been subject to much scrutiny. Together, they mean that a 13.8% class 1A employer national insurance charge will be applied to income derived from termination awards and sporting testimonials that are already subject to income tax.

Let me first set out the measure that covers termination awards. Between 2013 and 2014, the Office of Tax Simplification reviewed the tax treatment of employee benefits and expenses. The OTS published an interim report in August 2013 identifying termination awards as one of a number of priority areas. It found that relatively few employers and employees properly understood the regime. There was confusion, and the regime was therefore ripe for reform and simplification.

The OTS specifically identified three areas of misunderstanding on which it recommended we take action. First, certain forms of termination awards are exempt from employee and employer national insurance contributions and the first £30,000 is free from income tax. However, there is a common misconception that the first £30,000 of any termination payment is automatically tax free. Secondly, many employers believe that this exemption applies where in fact it does not, and thirdly, employers are unaware of the different income tax and national insurance treatment of termination payments.

Following the OTS recommendations, the Government announced at Budget 2016 that they would be reforming the tax and national insurance treatment of termination awards. As I said, the reforms to the income tax treatment of termination awards were legislated for in the Finance (No. 2) Act 2017 and took effect from April 2018. The Government confirmed at Budget 2018 that the associated reforms to national insurance legislation would be in place for April 2020. However, the fact that termination awards are currently subject to different income tax and national insurance treatment has created confusion, and that is what we are attempting to deal with today. Moreover, the current misalignment incentivises an admittedly small number of well-advised employers to disguise final payments as compensatory termination awards that benefit from a national insurance charge exemption. These reforms will close that loophole.

The Bill will place a 13.8% class 1A employer national insurance charge on income derived from termination awards on amounts over £30,000. However, I want to assure hon. Members that, when it comes to employee national insurance, these payments will remain entirely exempt. We have chosen to continue to ensure that employees will not face any additional liability as a result of these changes in terms of employee national insurance. This measure will raise around £200 million per annum for the Exchequer, which will make an important contribution to our public services. As this is a Budget measure, this sum has already been reflected by the Office for Budget Responsibility in its projection for the public finances.

Let me turn to the second measure in the Bill, which deals with aligning the employer class 1A national insurance treatment of income from sporting testimonials with the income tax treatment. As many hon. Members will be aware, a sporting testimonial is a one-off event—or series of related events—held on behalf of sportspeople who have played for a certain club for a long time. This often takes the form of an exhibition match involving famous players from the past and present. The testimonial can be used to raise money for the sportsperson before retirement, or sometimes to raise money for charity. The relevant income tax changes were debated and came into force from April 2017. As stated at the time of the Finance Bill—later the Finance Act 2016—the rules governing sporting testimonials are now changing to give clarity to the national insurance treatment as well.

Currently, when a sporting testimonial is non-contractual or non-customary, it can be organised by a third party, rather than the club or employer, to raise money without it being subject to NICs. Where the employer arranges the testimonial, or if it is part of the contract, or if there was an expectation that the sportsperson would be entitled to one, the testimonial is already subject to income tax and NICs.

[James Cartlidge (South Suffolk) (Con)]

Is there a sense of how common it is for a testimonial to be contractual? We all know that it is commonplace in cricket and football for players to have testimonials or similar events, so one assumes that most of them are contractual.

[Robert Jenrick]

My hon. Friend makes a good point, and our analysis is the same. Last year, only around 220 sporting testimonials of any kind took place in the United Kingdom, and a large number will have been contractual. Certainly, the highest-profile ones, such as those of premiership footballers or leading cricketers for significant county clubs, are usually contractual. As I will go on to say, because the measure has a one-off £100,000 threshold during the career of the sportsperson, a large number of those 220 testimonials will fall below the threshold. Less high-profile sportspeople, who will perhaps have lower earnings, are likely to be within the threshold. We are talking about a small number of relevant testimonials and, as hon. Members will see in the Bill’s accompanying documents, the measure will raise a negligible sum. Our motivation is primarily the simplification of the tax system and the avoidance of doubt for sportspeople and those advising them, rather than to increase revenue materially.

--- Later in debate ---

[Peter Dowd (Bootle) (Lab)]

The condensed national insurance Bill before us is a shadow of its former self. I would have liked to be able to say that I was bowled over or knocked for six by the Minister’s speech, but there were more own goals than anything else. It is far from the extensive Bill that was promised by the Chancellor’s predecessor at the 2016 Budget, which included the Conservatives’ 2015 manifesto pledge to abolish class 2 national insurance contributions. Instead, that manifesto pledge, like many of the Government’s promises, has quietly been sent to the landfill, barely even being recycled in this five-clause Bill. As for scrutiny, we have not even been able to amend the last three or four Finance Bills, but I am pleased that we will have an evidence session in Committee. I will be grateful for small mercies because we may be able to tease matters out a little more.

The cannibalisation of the national insurance Bill, which has been driven by the Chancellor’s volte-face on a tax cut for 3 million self-employed workers, reflects once again why the Conservative party has long ceased to be the party of the self-employed in particular and business in general. To many observers this will be viewed as another missed opportunity—one of the many opportunities that this Government have missed—to seriously address the relationship between the growing levels of self-employment in the UK and the levels of taxation and national insurance contributions that are paid.

The rushed timetable of this Bill has shown, once again, the Government’s complete lack of respect for parliamentary convention and the procedures of this House. The Opposition were notified only last Wednesday of the Government’s intention to timetable the Bill’s Second Reading, with an updated version of the Bill published last Thursday. The Government do not know one day from the next, although they do try to live from one day to the next. They gave parliamentary colleagues just one sitting day to examine the content of the Bill before today’s debate. The Government might not take their legislative responsibilities seriously, but the Opposition do.

Of course this is nothing new. Members have become accustomed to the Government’s handling, or mishandling, of legislation. The Government are engulfed in chaos and infighting on Brexit, and The Times reported yesterday that their rushed introduction of this hollow, some may say vacant, Bill is a further desperate attempt by the Prime Minister to keep this zombie Parliament in session.

Unwilling to face the electorate and unable to bring her dead-in-the-water Brexit deal back to Parliament for the fourth time, the Prime Minister is attempting to pack parliamentary business in the hope of avoiding an early Queen’s Speech that would no doubt be opposed by the Democratic Unionist Party and her own Back Benchers. This is a new embarrassing low for a Government who are all at sea. It is high time that the Prime Minister did the honourable thing and set a date for a general election and her departure. We have a kakistocracy dressed up as a Government.

The Bill is comprised of two key measures: the introduction of a new national insurance contributions charge for employers on the taxable element of termination payments above £30,000, as the Minister set out; and the introduction of a national insurance contributions charge on income from non-contractual sporting testimonials over £100,000.

The new class 1A employer NICs charge will be levied at 13.8%, if I understand it, and its introduction will align the NICs treatment of termination awards and income from non-contractual sporting testimonials. On the face of it, the Minister would have us believe that these changes are technical and benign. However, there is nothing technical about fundamental changes to the treatment of termination payments either for the employer paying them or for workers facing redundancy, who regard this final payment as an evaluation of the work they have done for their employer.

Termination payments, therefore, have both an emotional and a financial significance, and the amount awarded is often determined by painstaking and careful negotiations between managers and trade union representatives. A good employer might offer a generous termination payment to an employee as a sign that, even though they have had to make them redundant, it is not a judgment on the intrinsic worth of staff who are leaving.

However, a likely by-product of the Government’s proposed employer NICs charge is that it will incentivise employers to reduce the level of non-statutory termination payments to employees so that the overall level of non-statutory payments declines. This will diminish the level of termination payments available to workers who lose their job, while increasing the amount that the Government receive in NICs receipts.

The tax information and impact note for this measure goes to great lengths to clarify that this new charge will be limited to employers, and the Minister asserts that the Government have no plans to make further changes to the £30,000 statutory threshold, yet the Government’s own policy note states that this additional cost for employers will be reflected in lower wages.

The Office of Tax Simplification, which the Minister mentioned, noted in 2015 that imposing tax and national insurance contributions on all termination payments is

“likely to have a significant cost impact for some people, particularly those lower paid employees who may…often be the ones receiving smaller termination payments”.

Despite the clear impact that this measure will have on workers and employers alike, the original consultation noted that the Treasury had failed to undertake a distributional analysis of the impact of this new charge. With that in mind, will the Minister confirm whether, a few years on, that remains the case?

Similarly, the Chartered Institute of Taxation has raised concerns that the Bill does not set out how the new class 1A charge will be collected by HMRC, stating that it will instead be left to secondary legislation—more secondary legislation, the Government’s default position. The Treasury says it anticipates that the charges will arise and be paid in “real time,” rather than after the end of the tax year. However, tax experts note that this is a break from normal practice and will prove extremely cumbersome, requiring additional resources at a time when the Government are continuing their disastrous reorganisation of HMRC.

[James Cartlidge]

It is always a great pleasure and highlight to hear the hon. Gentleman talking about distributional analysis, but does he agree that, where we have what are effectively exceptional one-off payments that are hard to predict, it can be difficult to undertake such analysis? Sometimes we just have to be honest and accept that a measure is relatively minor. Although the money it raises is significant, we are unlikely to have the sort of data he is asking for.

[Peter Dowd]

It might be a minor measure, but the actual impact on individuals is potentially significant. I am interested in the impact it might have on individuals who lose their job, and not necessarily the capacity or otherwise of the Government to make an assessment of that. I focus my attention on those who may not get another job for a considerable period.

I now turn briefly to the second measure in the Bill, which seeks to introduce a similar NICs charge on non-contractual sporting testimonials for employed sportspersons. I look forward to leading the Government’s testimonial sooner rather than later.

Sporting testimonials have become a key part of our nation’s rich sporting history, presenting an opportunity for fans to pay tribute to sportspersons who are coming to the end of their playing career. I come from Liverpool, a city with a fantastic football team, Everton, and another football team, Tranmere Rovers. There is another team whose name I cannot remember; it has slipped my mind.

Under the Government’s proposal, the new class 1A employer NICs charge will apply after the first £100,000 and will make the controller of the sporting testimonial, usually an independent committee, liable to account for the charge where the employer is not organising the testimonial.

Although the Opposition recognise the logic of applying employer NICs to non-contractual sporting testimonials, where the money is going not directly to a sportsperson but, rather, to a testimonial committee, we are concerned that the majority of income from such testimonials comes from fans who make voluntary payments. If this measure is passed, there will be a clear inconsistency in the NICs treatment of voluntary donations or tips at sporting testimonials compared with the treatment of cash tips in the service sector, where the employer is not involved. That is something we will seek to address in Committee.

This condensed national insurance Bill is further evidence of the Government’s perpetual desire to shift the tax burden from the well-off to workers. Rather than tackling tax avoidance and raising taxes to ensure that the wealthy and large corporations pay their fair share, the Government are yet again introducing measures designed to raise additional revenue for the Exchequer from the termination payments of workers.

The introduction of a new employer NICs charge will inevitably lead to employers reducing non-statutory termination pay, leaving workers worse off when they have just faced the trauma of losing their job. To put it simply, this measure is unfair, cynical and disproportionate considering the scarring effect it will have on workers compared with the limited amount of revenue it will raise. We cannot support this, but we will look at it in more detail in Committee.

[James Cartlidge (South Suffolk) (Con)]

Before I start discussing the Bill, Mr Deputy Speaker, I hope you will not mind my saying that it is a pleasure to follow the hon. Member for Bootle (Peter Dowd), as always, but it is a particular pleasure to follow the brilliant speech made by my hon. Friend the Member for Cheltenham (Alex Chalk) about climate change and his Bill about the net zero UK carbon account. It was one of the finest speeches I have heard since entering this place. It was an inspiring speech on an incredibly important subject.

Having said that, although I intervened on the hon. Gentleman to say that this was a minor matter, that does not mean it is unimportant. I meant that it was minor in terms of the revenue, albeit that its revenue is important and welcome. We should add that it has been baked into the Government’s accounts, so if anyone were to oppose it, they would have to suggest where £200 million a year of revenue was going to come from, as we would be spending this money on public services, from which we will all benefit.

Given the context of politics today, I would understand it if someone sitting in the Public Gallery or watching this debate elsewhere were to look at the title of this debate, “National Insurance Contributions (Termination Awards and Sporting Testimonials) Bill”, and think to themselves, “With all that is going on in the country—with these Union Jack and European Union flags outside, and all the talk about European elections, local elections, Nigel Farage back out on the stump and so on—is this really what we should be debating?” I would say that this Bill is important because, in its own way, it is the future of taxation in this country. Members may think that that is an odd thing to say, but we are going to be seeing a lot more of this type of Bill on taxation: measures that deal with specifics. I would not necessarily say that it deals with avoidance, but it is certainly a tidying-up measure that brings in welcome revenue.

Contrary to what the hon. Gentleman said, the Bill has little noticeable impact. Why do I say that? Ever since the early 1990s—since the 1992 general election and the 1997 one—and for the time being perhaps, the days when one of the main parties would go into a general election promising to change one of the main rates of taxation have gone. When I was elected in 2015, the Government we served in had specific legislation saying that we would not increase the main rate of national insurance. I think it also said we would not raise the main rates of income tax and VAT. There was legislation about the aid budget. We then found out that we would not increase tax on the self-employed and we would not increase the main tax on the employed. In fact, we changed inheritance tax. You soon run out of anywhere left where you can change any substantive tax, which must have been a concern in the Treasury; you are left with those yet to come and the good, old-fashioned national credit card. Our party has tried to avoid using that as much as possible. If Labour were successful at the next election, I am not sure it would be quite so successful on that—I think the card would take something of a hit.

The reason we support these types of measures is not because we welcome tax increases per se. In the context where the Government have pledged not to increase main rates of tax—I am sure Labour would be the same, although perhaps not on corporation tax—and in a political climate of no parliamentary majority, it is difficult to pass those “more radical” tax changes. So we will see more and more of these types of changes. We may call them tidying-up exercises or tax simplification measures—we have had many similar measures called “anti-avoidance”—but the point is that in total they bring in a lot of revenue. We are talking about significant revenue—£200 million a year is significant. If we put that in the context of the police budget, we see that it is a significant sum, so it is important. I will certainly be supporting this measure. I do not know whether the Labour party will, because I was confused by the hon. Gentleman’s speech. Perhaps we will get some clarity later.

One thing we should be wary of is that the specific area of taxation we are changing and increasing here is employers’ national insurance. I declare an interest, as an employer. I am a controlling director of a small business and have been for many years. It is fair to say that there are pluses and minuses with using employers’ NI as a method of obtaining revenue for Her Majesty’s Treasury. On the upside—this is why I have sympathy with this measure—it is saying, “Here are a lot of similar activities and it just so happens that in some of them employers’ NI is not paid. It is in the other ones, so we are harmonising the situation.” That is perfectly fair and reasonable. We have seen this in other contexts, with the classic one being IR35; people, often knowingly and perhaps sometimes unknowingly—it is hard to say—have constructed their tax affairs in such a way that, in effect, they are not having to pay either some employees’ taxes or the costs that there would be for a traditional company paying employees of paying employers’ NI. It is important always to consider the application of employers’ NI because, if it is not applied fairly, it can offer a perverse incentive in the tax system and create strange behaviours.

My right hon. Friend the Chancellor has talked about people who became self-employed and were not genuinely self-employed—I cannot recall the precise phrase he used, but we all know what that means. It means that someone is setting up their tax affairs in such a way as to reduce the amount of taxation they pay, rather than doing so because they are a plumber who, by their very nature, is going to be self-employed.

--- Later in debate ---

[Peter Dowd]

These testimonials are very important. A former Liverpool football player, Jamie Carragher, a Bootle lad, also had a testimonial and he put the best part of £1 million into his Jamie Carragher 23 Foundation. That is worth a mention.

[James Cartlidge]

I am grateful to the hon. Gentleman for mentioning the other Liverpool team, as it were. They seem to be doing quite well this season. It is a good and important point to make, because it sounds to me as though a relatively small number of sportspeople will have to pay a bit more tax in the coming years as a result of the Bill—there are a small number who do not have testimonials agreed contractually—but it is fair to have fairness.

Let me conclude on fairness. The hon. Member for Bootle and I have had one or two exchanges on Treasury matters over the years. He finished with quite a stirring wind-up, saying that with this Bill we were somehow supporting the rich—that classic old storyline that we were the party of failing to crack down on tax avoidance by the rich and were instead hitting the poorest. Well, what is the threshold in the Bill? It is £100,000.

[Peter Dowd]

What about redundancies?

[James Cartlidge]

The hon. Gentleman can correct me if I am wrong, but I believe the limit for testimonials is £100,000. [Interruption.] The hon. Gentleman mentions redundancy payments from a sedentary position; he can correct me if I am wrong again, but I do not think the Bill affects redundancy payments. It is about other, voluntary termination payments. On the subject of terminations, Mr Deputy Speaker, you will be delighted to hear that I shall now terminate my speech, but I will support this very good Bill.