Lord Forsyth of Drumlean
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Scotland Bill
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Lord Wallace of Tankerness
That the House do now resolve itself into Committee.
Lord Forsyth of Drumlean
My Lords, before continuing the Committee stage of the Bill, I should like to ask my noble and learned friend for some information about the progress that has been made on securing the legislative consent of the Scottish Parliament.
I should also like once again to complain about the fact that this Scotland Bill is being considered on a Thursday, when Members of this House who live in Scotland generally travel north. This matter has been raised previously. When I have raised it with my colleagues, I have been told that the Opposition have requested it. It is deeply inconvenient. I know that a number of colleagues have been unable to participate as a result.
I should also like to complain also about the time which has been made available for consideration of the amendments. All the amendments that I have tabled, and I have quite a number, relate to matters which were not considered in the House of Commons. All of them raise relatively serious points. I read on the groupings list that we will sit until the business is completed. I have plenty of stamina, but I would suggest that debating these matters relating to Scotland—we will of course try to expedite them—late on a Thursday evening is very unsatisfactory, especially when we are talking about an important constitutional Bill many of whose issues were not addressed in the other place where the Bill was subject to the usual guillotine procedure.
I return to the main point on which I feel the Committee should be advised, which is where we have got to on the question of the legislative consent Motion from the Scottish Parliament. This is important. Throughout the proceedings in relation to the introduction of new taxes in Scotland, my honourable friend David Gauke, the Treasury Minister, rested on the fact that a legislative consent Motion for the Bill had been passed by the Scottish Parliament, saying that,
“any future devolution must happen with the wholehearted consent of the Scottish Parliament”.—[Official Report, Commons, 14/3/11; col. 70.]
All the consideration of the Bill by the other place was on the basis that it had the support of the Scottish Parliament, but that is no longer the case.
There was a legislative consent Motion passed by the Scottish Parliament in March 2001. That is the legislative consent Motion which was noted on the Bill’s formal entry to this House. Indeed, the Explanatory Notes to the Bill state at paragraph 8:
“A further Legislative Consent Motion on additional amendments will be debated later in the legislative process”.
That referred to amendments to the Bill after consent by the Scottish Parliament. Since then, there has been an election in Scotland and there is a new Administration led by Mr Salmond. The committee of the Scottish Parliament, meeting on 13 December 2011, which was a year and one month after the First Reading of the Bill in the House of Commons, was unable to recommend that the Parliament pass a legislative consent Motion on the Bill until the Bill had been amended in line with the committee’s recommendations. It is of course for Mr Alex Salmond to table a Motion for legislative consent, which he has consistently refused to do.
I think I am entitled to ask my noble and learned friend what is going on here. The other place considers the Bill on the basis of a legislative consent Motion which no longer applies, with a Minister saying that we could not do this without the consent of the Scottish Parliament; at an earlier stage of the Bill, we were assured that negotiations were continuing with the Scottish Parliament and that Ministers had every confidence that they would have legislative consent; and now, today, we are about to embark on considering bringing in revolutionary tax powers for the Scottish Parliament and we still do not know whether we have a legislative consent Motion. What is the status of this and what is the Government’s position? Is the Government’s position as David Gauke told the other place, that any future devolution must happen with the wholehearted consent of the Scottish Parliament, and why are we taking so much time, with the House apparently being prepared to sit until the early hours of the morning if necessary, to deal with a Bill which may not meet the requirements of Alex Salmond and the Scottish Parliament?
Lord Forsyth of Drumlean
I apologise to the noble Lord if I implied that he was responsible for it. I was misinformed.
Lord Browne of Ladyton
I shall savour that apology. I am grateful to the noble Lord for his gracious apology. I shall bank it away because we may get to a point during the course of today when I will need it in order to bargain for others.
I am as interested as any Member of the House in where the discussions between the Government and the Scottish Government are in relation to the legislative consent Motion. However, I have been consistently of the opinion that the Scottish Parliament will pass a legislative consent Motion in relation to this Bill. I am also consistently of the view that we have promised the Scottish people that we will deliver the Bill in such a way that it can be enacted by a legislative consent Motion effectively and that we should keep our word to the Scottish people and to the Scottish political classes.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, picking up on the final point made by the noble Lord, Lord Browne, there was a commitment in the manifestos of all three parties—the Conservative Party, the Labour Party and the Liberal Democrats—at the last general election that we would seek to implement the Calman commission proposals, which this Bill substantially seeks to do.
On the issue of sitting days, I readily recognise the concerns. Indeed, I was told that the House would sit to debate the Scotland Bill on a Thursday and I have turned up today with my noble friend Lord Sassoon to respond to the amendments. The noble Lord, Lord Browne, indicated some of the issues that we have had to address. There was one day—Tuesday, 14 February—when, because of the time taken by the Welfare Reform Bill, we did not manage to debate anything. The decision was taken late in the day that it would not be proper to start our debates after 9.30 pm, and there was general agreement that that was the right decision. Our previous debate in Committee was on a Tuesday. Next week we will be in Committee on Wednesday.
On the point made by the noble Baroness, Lady Liddell, it was not on Second Reading but when we moved into Committee in January that the Government announced, as a result of representations they had received, quite properly, from my noble friend Lord Forsyth, that there would be a consultation. There were amendments on the Marshalled List to the effect that we would not deal with referendums until after the consultation period had closed. I indicated at the time that we would hope to deal with them in the week beginning 12 March, and today was originally identified as the date for doing so. However, as has been indicated, as we lost a day because of the ping-pong on the Welfare Reform Bill, we were not able to make as much progress on the last occasion as we had hoped. These debates will now take place next Wednesday, when there will be an opportunity to address the issues around referendums.
It is perfectly reasonable for my noble friend to ask where we have got to with the legislative consent Motion. A Motion was passed in the Scottish Parliament in March last year, which I suspect is the one that our honourable friend Mr Gauke was talking about. I have no doubt that the noble Lord, Lord Foulkes, voted for it, as he was still a Member of the Scottish Parliament at the time. It is also worth pointing out that on the final vote, Mr Alex Salmond voted for it, too, as did many people who are currently members of the Scottish Government. That legislative consent Motion stands until any subsequent Motion is tabled that updates it.
The Government intend to secure a legislative consent Motion from the Scottish Parliament in favour of the Bill—
Lord Forsyth of Drumlean
My noble and learned friend says that the legislative consent Motion stands. However, will he deal with the view of the committee—which is the latest consideration by the new Parliament, where there is now an SNP majority rather than a minority—that it was unable to recommend that the Parliament pass a further legislative consent Motion on the Bill until it had been amended in line with the committee’s recommendations? As we discussed before, there are 45 recommendations, which effectively deliver devo-max.
Lord Wallace of Tankerness
That is perfectly fair and I will come on to address that. I was simply making the observation that there is, currently, an outstanding legislative consent Motion, which was actually supported by many members of the current Scottish Government. It is certainly our intention that we should have a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and I and my ministerial colleagues have been working very hard to secure the support of the Scottish Parliament for such a Motion. I am sure the Scottish Government would acknowledge the same.
We have been working together to consider and to assess the request for amendments to the Bill. It would be wrong to speculate on the outcome of the work being undertaken with the Scottish Government, but the key point is that I can assure the House that we are working hard to ensure that the Scottish Parliament will vote in favour of a legislative consent Motion for the Bill. It would not be appropriate to get ahead of discussions between Ministers—as noble Lords have highlighted, it is for the Scottish Government to propose a legislative consent Motion and we must allow the interministerial discussions to continue and not get ahead of them. However, I know that my right honourable friend the Secretary of State had conversations yesterday with the Scottish Government. Indeed, before coming to your Lordships’ House today, I was engaged in discussions about moving forward, to get into a position where we can get an agreement.
The Sewel convention is about respecting the devolved areas for which the Scottish Parliament is accountable. It provides that the United Kingdom Parliament will not normally legislate on devolved matters without the Scottish Parliament’s consent. I believe we have gone further than with any other Bill in considering and taking on board the view of the Scottish Government and Parliament, and we will continue to work to reach agreement. The Secretary of State has made clear, in letters, phone calls and meetings with Scottish Government Ministers, that we will properly consider all their requests for changes to the Bill. I understand and readily recognise that noble Lords are keen to hear the outcome of the discussions with the Government, but I urge noble Lords to continue with their thorough scrutiny of the Bill, alongside our work to agree a legislative consent Motion. I hope that by the time we come to Report, it will have been possible to update your Lordships on the intergovernmental discussion.
Lord Wallace of Tankerness
There was an expectation across the Floor of the House that we should defer Committee discussion until the end of the consultation. It was agreed between the usual channels that if we did that, it would necessitate a shortened period between Committee and Report—if only for the obvious reason of being able to get to Royal Assent, as the noble Lord pointed out.
Lord Forsyth of Drumlean
My Lords, I very respectfully remind my noble and learned friend that the Bill is before Parliament. In his remarks about legislative consent, he indicated that the Government might have to bring forward some amendments as a result of the negotiations that are being carried out by Ministers. Ministers cannot just presume the consent of Parliament. It strikes me as extremely odd that we should be half way through the Committee stage on a Bill that was introduced more than a year ago, and these negotiations are still continuing. I do not know if my noble friend is a fisherman. I am. If you want to land a salmon, you play it for a long time. In this case, the Salmond seems to be playing the Minister. He is deciding the timetable and what amendments may be put before us. We are being told that we can only consider them at the last minute, against a deadline. This is a ridiculous position for us to be in.
I have two specific questions for the Minister. Is he saying that, in the absence of a legislative consent Motion, the Bill will not go ahead? Or is he saying that he is in negotiation and will bring forward reasonable amendments, but that the Bill will go ahead? That is the crucial thing that he needs to tell the House now.
Lord Wallace of Tankerness
My Lords, there are a number of possible options if the legislative consent Motion is not forthcoming, but every effort is being made to achieve it. Obviously, my noble friend is absolutely right that anything in any amendment that is brought forward will be subject to Parliament. As we well know, it is quite proper and consistent with our procedures for your Lordships to vote on anything they wish to. It will be for Parliament to decide the final shape of the Bill.
Lord Forsyth of Drumlean
My noble and learned friend said that Parliament will decide the final shape of the Bill, but there is a thing called a timetable. We know that the House will get up for the Queen’s Speech. We are against a time constraint, and if negotiations are continuing as the Bill proceeds, the opportunity for the House to do that will be limited. When my noble and learned friend says that a number of options are open to the Government in the absence of a legislative consent Motion, could he share them with the House? We are entitled to know whether the Bill that we are discussing will go ahead if we do not have a legislative consent Motion. That is a perfectly reasonable question, and the Minister cannot respond by saying that there are a number of options. There is only one option—yes or no.
“(9) This section is subject to section (Referendum about Scottish rate of income tax).”
Lord Forsyth of Drumlean
My Lords, this is an important amendment, which provides for a referendum if the sections of the Bill that introduce for the first time a Scottish income tax are enacted by the Scottish Parliament in such a way that Scottish taxpayers end up paying a higher rate of income tax than people in the rest of the United Kingdom.
I should point out that the order of consideration of amendments that has been circulated to the Members of the House is not actually the order that I have in front of me now. I do not know whether it is possible for further documentation to be provided so that we are all on the same page, as my amendments are now grouped with those from the noble Lord, Lord Foulkes.
The original provisions in the Scotland Act, which provided for a Scottish variable rate of income tax, gave the Scottish Parliament the power to raise income tax by 3p in the £1 on the basic rate alone. It did not apply to either of the other rates of income tax and was limited to 3p. As Secretary of State I well remember campaigning long and hard on the tartan tax, which is a much better name than the Scottish variable rate. The Bill seeks to abolish the 3p variable rate, although it was something that the Scottish Parliament voted for in a referendum. It was something that people campaigned for and against; it was subject to argument.
It seems extraordinary to get rid of something done by referendum without having a referendum to endorse that. I am no fan of the Scottish variable rate; I thought that having the power to set a higher rate of income tax in Scotland would result in great disadvantage to Scotland if it was ever used—and I am delighted to say that it never was used. Many people enjoy jobs and prosperity they would not otherwise have enjoyed had those powers been used, so I welcome the fact that the Bill abolishes the tartan tax and gets rid of the variable rate. This is great progress, but unfortunately it goes on to create a new power for the Scottish Parliament not just to set the basic rate of tax within a limit of 3p but to set any rate of tax that it chooses that will affect the basic and higher rates of income tax. That is a huge change, way beyond anything that was set out in the Scotland Act and way beyond what was put to the Scottish people in a referendum.
The amendment would give the Scottish people the right to decide whether these sweeping powers, which will inevitably make Scotland the highest-taxed part of the United Kingdom, are appropriate and desirable. In our consideration of the Bill at earlier stages, it has become apparent that in respect of many of the tax powers there is perhaps not widespread knowledge of this in this House or the other place. The extent to which people in Scotland are aware of the potential impact of the power is limited. I simply cite evidence the recent discussions in Scotland about more powers for the Scottish Parliament, which clearly show that many people advocating those powers do not realise that they are already in the Bill and, in some respects, beyond what they desire.
It is important, too, that this provision should be subject to a referendum not just on the principle that the previous Labour Administration, who took office in 1997, thought it appropriate to have a referendum but because so many of the details about the operation and implementation of the tax, and its extent and the scope, are not actually provided in the Bill. For example, as the Bill stands, people with income from savings or dividends will not pay the Scottish income tax, but people with income from pensions will. Why is that? How is that going to distort the relative desirability of pension and savings investments of a more conventional kind? The Bill does not give the Scottish Parliament the ability to change the thresholds for income tax purposes or the ability to increase the rates by differential amounts, so it would be impossible for the Scottish Parliament to set a higher rate of tax while keeping the basic rate at the same level. Why is that? Should those matters not be subject to debate and consideration?
The effect of implementing this power in the Bill would be that any higher income tax in Scotland would be a disproportionately heavy burden on the lowest paid compared with the highest paid, which strikes me as a rather extraordinary thing to do. Of course, in the Bill the amount of grant that is being reduced is the equivalent to 10p on income tax, which is a curious position. Why not have all the revenue from the income tax? Why have the 10p? These matters are being debated in Scotland now.
I hesitate to mention the late lamented poll tax, or community charge, but one of the problems with the poll tax was that it raised a relatively small part of local government revenue. The same was true of the rates, and therefore in order to make an increase in expenditure that fell for its burden upon the poll tax or the rates, you required a disproportionately large increase in the amount. One of the issues here is how this income tax power would operate. The Minister gave figures earlier in our deliberations and, as I understand them, 1p on income tax would raise £420 million. That is a relatively small sum when one thinks that the Scottish Parliament is having to reduce its funding by £3 billion to meet the deficit reduction requirements. Allowing for a reduction in yield, that is the equivalent of allowing for 8p on the basic rate of income tax. On my calculations, that is a 40 per cent increase, whereas 8p on the 50p rate of income tax would be a very much smaller percentage increase.
A number of issues about the operation of this income tax, both in its scope and in the limitations on the powers of the Scottish Parliament, have not been debated or considered at all in Scotland but ought to be, and almost certainly would be debated or considered if there was a requirement to have a referendum before these powers could be implemented. The most important thing about taxation—the very nature of the other place—is in ensuring that taxes are not levied without consent, and that those raising the taxes are subject to the accountability of the people. This is a huge change. It is not one that I welcome but I acknowledge that I am in a minority, in this House and in the other place, in forming that view.
The people of Scotland should have an opportunity to have an explanation of what is being suggested, and the chance to give their verdict on it. This amendment attempts to do that, and in doing so it merely reflects the view of all parties when they campaigned for devolution in the first place, which was that there should be a referendum on the tax-raising powers.
Lord Foulkes of Cumnock
I wonder whether everyone in the House is absolutely clear, because I am slightly confused about it, that we have now degrouped from my amendments the amendments tabled by the noble Lord, Lord Forsyth, on the referendum on taxation powers, so we are just dealing with Amendments 53, 55, 56 and 57.
Lord Forsyth of Drumlean
I have the same problem. I have a revised list that I got from the Whips’ Office and it would be really helpful if the revised groupings could be made available. It is of course not for me to give the noble Lord advice. He can insist on degrouping his amendments, but as they are about referenda it would make sense for them to be grouped together.
Lord Foulkes of Cumnock
I specifically asked in an e-mail, which got a response from the clerks’ office, for my amendments to be degrouped from those tabled by the noble Lord, Lord Forsyth. It is not that I want to be disassociated from him completely, but because although I have tabled the appropriate amendments to allow a referendum, the basis on which I will argue for that—and I hope to argue for it later, which is why I wanted to clarify this now—is entirely different from the basis on which the noble Lord, Lord Forsyth, is arguing for it. I actually want the Scottish Parliament to be given full fiscal responsibility and to have all these additional taxation powers, but only if they are approved by the Scottish people in a referendum. That is an entirely different basis of argument, and why I wanted it separated. Can I assume from the list that I have that we are dealing just with Amendments 53, 55, 56 and 57 now, and that my Amendments 66 to 69 will be dealt with after Amendment 65, tabled by my noble friend Lord Barnett? Is that agreed?
Lord Browne of Ladyton
My Lords, I thank the noble Lord, Lord Forsyth, for his amendments and for opening this debate. I also thank him for the opportunity to make a speech that will, I hope, over the hours that we will spend on debating these and related issues, be considered to be multipurpose.
I had expected—and anticipated in preparing my speaking notes—the amendments of my noble friend Lord Foulkes to have been regrouped, for maybe the second time, with those of the noble Lord, Lord Forsyth. Therefore, I wrote a note to myself to apologise to both noble Lords for giving a generic response, rather than addressing all the subtleties of the individual effects of their amendments. I do so because this is, ultimately, an issue of principle. I do not devalue all the detailed points that underpin the argument that the noble Lord, Lord Forsyth, put forward about the interesting debates that we could have in Scotland on the referendum and the detail of these specific taxation powers. However, whether we have a referendum on them is an issue of principle, and there are principles that we ought to apply. I will deal with that. I am sure that we will then get to the detail through the revised groupings, or re-revised groupings, of amendments that I have in front of me. The noble Lord, Lord Forsyth, has indicated that the details are exercising him.
My second point is one that I have made before. I deeply regret that timetabling prevented the other place dealing with the detail of these very important issues. The last time that we convened this Committee, we had a very interesting debate on Clause 28— probably for the first time anywhere in the United Kingdom, unfortunately. It is a matter of deep regret that our elected representatives in this Parliament were denied the opportunity for debate by timetabling, thereby denying us a quarry of their position that we could mine to inform our debate. Therefore, when we draw on what we believe is the will of the Scottish people, as expressed by their elected representatives, we draw on information that unfortunately cannot be in the public domain, such as conversations and observations. Some of us have expertise that we have built up over time from watching what is happening in Scotland and knowing, from the conduct of politicians, what the people they represent are telling them. That is deeply unfortunate but it is where we are. There is a bigger issue at stake in the politics of Scotland, but I will come to that strongly later in the debate. We should keep our eye on the prize, which at this time is the union of the United Kingdom. There is a political imperative at the moment that should dominate everything that we do. I regret that we are sometimes forced into undermining that by the way in which this has been handled, which has been deeply inefficient.
I turn to the principle of referendum. I do not believe that there is any constitutional imperative to hold a referendum on the devolution of financial powers to Scotland, as provided for by Part 3 of the Bill, for the following reasons. First, the conclusion of the Select Committee on the Constitution in its 2010 report, Referendums in the United Kingdom, was:
“We do not believe that it is possible to provide a precise definition of what constitutes a ‘fundamental constitutional issue’”.
It is a fascinating publication for the reasons that I am about to explain to your Lordships’ House. The committee did not look specifically at the example of the devolution of financial powers, although it could have because it was in the air. Therefore, noble Lords are entitled to look beyond such a conclusion to test whether what has been described by government Ministers as the largest transfer of financial power from London since the creation of the United Kingdom would be a likely candidate for a referendum.
In looking beyond the committee’s conclusions, we should look at the evidence that was heard, which is deeply instructive. If noble Lords will excuse me, I will go into this in some detail because it is interesting. Before I rehearse some of the evidence, I am prepared to concede that people who listen to this debate may think, on the basis of the expert testimony to the committee, that there is a legitimate view that that evidence tends towards the view that the devolution of financial powers would commonly be considered a candidate for referendum, given that the definitions posited included the following. I will share a number of them with noble Lords.
In giving evidence, Professor Gallagher referred to,
“fundamental questions concerning sovereignty or a major constitutional settlement, especially if they concern steps that would be completely or virtually irreversible once enacted”.
The Institute of Welsh Affairs, in its evidence on page 126, referred to,
“truly major issues of democratic principle—change that alters fundamentally the nature of the state”.
Caroline Morris, who is an expert, gave two definitions:
“Topics ... which directly affect the constitutional make-up and powers of a state”,
and,
“changes to the sovereign powers of a state”.
My noble friend Lady Kennedy of the Shaws gave the following definition:
“Anything that changed the power balances within our democratic system ... anything that in any way redistributed power in a significant sense”.
Professor Bogdanor cited:
“Legislative proposals which provide for a radical alteration in the machinery by which the laws are made”.
Professor Saward referred to,
“significant, encompassing and lasting change in the formal and general rules and rights which locate political authority”.
Professor Graham Smith mentioned,
“anything that changes the dynamic and the relationship between the people and those who are elected”.
All these definitions, which are not mutually consistent, could support the argument of the noble Lord, Lord Forsyth. However, they must all be considered against the backdrop of historic precedent. As the Constitution Committee noted in its analysis, no definition of principle can be extracted from historic precedent.
Lord Forsyth of Drumlean
I agree that all those definitions could be advanced and are open to argument, but what about something that has been approved by referendum but which you propose to reverse?
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention. I think that the somewhat delayed intervention by the noble Earl, Lord Mar and Kellie, on the noble Lord’s speech—it occurred long after the noble Lord had stopped speaking, but it was in the nature of an intervention—answered that point, but I will come to that in a moment. I think that I can answer that question.
Although it could be said that matters of significant constitutional change ought to be put to a referendum, many are not. Indeed, there was never a referendum on the Human Rights Act 1998—some people may regret that—the Fixed-term Parliaments Act, the Constitutional Reform Act 2005 or, indeed, if I anticipate the outcome of the debate that is presently taking place, on the future of your Lordships’ House. The House of Lords Reform Bill does not anticipate a referendum on that matter in the next Parliament. Therefore, although there appear to be certain broad principles on which academics and others can give evidence, which indicate what is a good candidate for a referendum, ultimately it seems that it comes down to a political judgment. We appear consistently to have exercised this power on the basis of political judgment. It is for this reason that I do not think we can discuss the noble Lord’s amendments—I anticipate my noble friend’s amendments—in a vacuum from the political environment. We have to defer to the political circumstances that face us during our consideration of this Bill. That is what I invite noble Lords to do.
I suggest that to require a referendum on the devolution of financial powers before the commencement of Part 3 of this Bill would be irrelevant in the present political context. Indeed, I go further—I think it would be irresponsible for the reason that the single fundamental question being posed to the people of Scotland at this time concerns the issue of secession. An additional referendum in this context would only confuse such a debate and distract from the single important question at hand. I understand that the circumstances have changed but we are discussing this matter now and not when we had expected that we would when this Bill was conceived as it emerged out of the Calman commission.
It is important to note that with the exception—it is an impressive exception—of the noble Lord, Lord Forsyth, and his shaky alliance with my noble friend Lord Foulkes, there is no political movement at all for any such referendum. There is no clamour for such a referendum in Scotland. I know that the noble Lord, Lord Forsyth, will say that is because many people in Scotland do not understand the implications of this piece of legislation.
Lord Forsyth of Drumlean
I hope I may interrupt the noble Lord again. His speeches are always carefully crafted and well thought through and I am enjoying listening to him. However, when he says that there is no demand for such a referendum in Scotland—I absolutely agree with him that the key issue is whether or not we are going to break up the United Kingdom—I had the impression that the First Minister, the Scotsman, Scotland on Sunday and every newspaper in Scotland were all campaigning that people should have an opportunity to have a referendum on devo-max. To my mind what is in this Bill is devo-max. Indeed, my noble and learned friend the Minister says that in my mind in some ways it goes beyond that. However, there are within the Bill the powers to deliver devo-max. Therefore, when the noble Lord says there is no demand for this in Scotland, I think there is a demand for a referendum on extra powers which are already being delivered by this Parliament, and which people are completely unaware of.
Lord Browne of Ladyton
I hope the noble Lord will not be surprised to hear that I anticipated this very point about devo-max. I intend to cover it very specifically. However, I am driven in these arguments by the political imperative of concentrating most of my political firepower on the arguments for retaining the union of the United Kingdom. I have tested every contribution that I have made to this debate against whether or not it makes that retention more or less likely. I ask noble Lords to join me in concentrating their minds on that issue, to look at this matter in the context of the political circumstances that face us at the moment and to make priority choices. In other circumstances I might well have supported the amendment of the noble Lord, Lord Forsyth, but in these circumstances I do not. I am trying to lay out the arguments.
As I was saying, there is no political movement for such a referendum. There is remarkably complete coherence between the parties in Scotland on the view that there is no necessity to seek a further mandate from the electorate as regards a referendum on these powers. Further, as the Calman commission noted, and the noble Earl, Lord Mar and Kellie, has reminded the House, there is an argument contrary to the argument put forward by the noble Lord, Lord Forsyth, that such a mandate has already at least partially been granted by the 1997 referendum on Scottish devolution in which 63.5 per cent of the Scottish electorate agreed with the statement,
“I agree that a Scottish Parliament should have tax-varying powers”.
That was the question, not plus or minus 3p, or what the consequences would be if this power was or was not used—we know the history of that—but whether the Scottish electorate agreed with the statement,
“I agree that a Scottish Parliament should have tax-varying powers”.
In a recent report on a referendum on Scottish independence, the Select Committee on the Constitution agreed with the UK Government’s position—this comes to the point the noble Lord raised about devo-max—that whereas independence is a Scottish question, devolution-max is not solely a Scottish question and proposals for a significant change to the devolution settlement considered under this title must be addressed only once the issue of secession has been clearly and decisively addressed by a referendum of the Scottish people. Therefore, we need to deal with these things in series and we need to keep our eye on the ball as regards the issue which is foremost in Scottish and UK politics at the moment in terms of the constitution. It is within this public and political discourse that we need to consider the priority of a referendum on the devolution of financial powers. I argue that the conclusions of the Select Committee are of precise relevance to this question. A referendum on the devolution of financial powers as proposed by Calman, and elaborated in this Bill, would in my view be politically misguided and publicly rejected prior to a referendum on devolution.
These are powers which I have said repeatedly the Scottish people want. There is significant evidence of that. I regret that I am not able to refer noble Lords to detailed debates in the other place to advance that argument but I know from extensive consultation with Scottish parliamentarians and Scottish people that the Scottish people want these powers. Much more importantly, they want these powers now because they want them to address issues which are important to the Scottish people now and were made obvious as a priority to them by yet another performance of the Scottish economy that has reversed the previous trend of devolution over the past few years in that we are now behind the rest of the United Kingdom in unemployment and growth. For almost all the period of devolution in Scotland the opposite situation applied. It is only since the SNP has taken control of government in Scotland that we have got into a situation whereby we are falling behind the rest of the United Kingdom as regards unemployment and comparative growth of GDP. Therefore, these powers are needed now.
The future development of the devolution settlement, be that full fiscal autonomy or whatever—there are all sorts of titles—may well ultimately be a question for a referendum, but it is a question that needs to follow the broader one of Scotland’s future membership of the union. In my view it cannot coherently be proposed before that. Consequently, these Benches cannot support the noble Lord’s proposed amendment of the Bill. I apologise to my noble friend Lord Foulkes far more in advance than I would normally have to do as we will not support his call for a referendum, no matter what the motivation for it is, when we come to that part of our debate in Committee.
Lord Forsyth of Drumlean
My Lords, I hesitate to go back over old ground and reopen old wounds, but as I recall, I was the person who was pressing the Labour Party to have a referendum on the tax-varying powers. The shadow Secretary of State—now the noble Lord, Lord Robertson of Port Ellen—was dead set against a referendum but he was sat upon by Tony Blair, the then leader of the Opposition, and forced to agree to one. I think that I can claim a track record on getting the referendum that was initially opposed by the then Labour Opposition. But quite rightly, and to their credit, they followed through on it.
Lord Wallace of Tankerness
I am probably going to compound matters by saying that it was opposed by the Scottish Liberal Democrats at that time. It was not right to say that all parties called for a referendum, but we all campaigned in it.
Lord Forsyth of Drumlean
That absolutely illustrates my view. The noble Lord, Lord Browne, says that people’s attitudes to referendums are a matter of political judgment. I tend to find that people are in favour of referendums if they think that they can win them but against them if they think they might lose.
Lord Wallace of Tankerness
My Lords, I did not have any doubt that we would win a referendum, I just did not think it was necessary—and I did take the legislation through on the referendum for the alternative vote. The point, as the noble Lord, Lord Browne, said, is that there is no political movement for a referendum on these measures. He is also absolutely right to say that all of us who share the goal of keeping Scotland within the United Kingdom should have our eye fixed on the one referendum, in which we will seek to ensure that Scotland remains a full member and plays a full part in the United Kingdom. Any other referendum in the interim would be a distraction and could undermine the case, because it would obviously take up time and resources when we should in fact be focusing on exposing the weaknesses of the case for independence and proclaiming the case for a Scotland within the United Kingdom. In those circumstances, I very much hope that my noble friend will not press his amendments.
Lord Forsyth of Drumlean
My Lords, we have had an interesting debate and I am grateful to everyone who has spoken. I seem to be somewhat isolated on this issue. I worry about the idea that the tax-raising powers in the Bill will increase the accountability of the Scottish Parliament. As I am sure my noble and learned friend will confirm, had those powers been in place and exercised since 1998 when the Scottish Parliament was established, the block grant which the Scottish Parliament had available to it would have been reduced by many billions. The exercise involves substituting a slice of the Barnett funding with funding that comes from the tax base. If public expenditure is growing faster than the tax base, the result is that far less revenue is available.
Tempted as I am to support the proposals because they would have had the effect of squeezing public expenditure in Scotland substantially and, I suggest, avoided considerable waste and the policies which have resisted reform of the public services, the notion that they would increase accountability needs to be looked at very carefully. It will squeeze the resources available to the Scottish Government over time and, in doing so, put pressure on them to use the tax powers, which by the nature of the gearing effect will result inevitably in Scotland becoming the highest taxed part of the United Kingdom. I venture to suggest that at that point, many people will say: “Why weren't we told this? Why didn't we know about it?”. If I am still around, I will take great pleasure in saying: “I suggested that there should be a referendum so that people had a chance to consider these arguments and know what they were being committed to”.
I entirely accept that the political classes and the political establishment have got together in the worthy cause of stopping the Scottish nationalists getting control of the Scottish Parliament and taking us towards independence, but I have my doubts about how it will increase accountability. I suggest that my noble and learned friend think about this again. If a referendum was held—I assume that those on both Front Benches are confident that the Scottish people would vote yes to these tax-raising powers, although I suspect that their opposition to the referendum may lie in their doubt that they would—there would be clear consent for the exercise of the powers.
The noble Lord, Lord Browne, and the noble Earl, Lord Mar and Kellie, suggested that a mandate was granted by the referendum on the original Scotland Bill. The noble Lord is quite right to say that the question was:
“I agree that the Scottish Parliament should have tax-varying powers”,
but those tax-varying powers were defined in the referendum campaign as being limited solely to 3p on the basic rate. This is far more than tax-varying powers. This is the introduction for the first time of a new Scottish rate of income tax. We are not talking about tax-varying powers here, we are talking about the ability to set a new rate of income tax that the Scottish Parliament chooses.
My noble and learned friend talks about opinion polls and surveys. I venture to suggest that if you go out and say, “Do you think the Scottish Parliament should have more powers?”, that is a bit like saying, “Do you love your mother?”. Of course people are going to say yes, the Scottish Parliament should have more powers. If you ask them, “Do you think that Scotland should be able to be made the highest taxed part of the United Kingdom?”, I think they might have a different view. If you ask them, “Do you think that the Scottish Parliament should be able to take money out of your pay packet?”, you might get a different answer.
Lord Browne of Ladyton
It is an important part of the noble Lord’s argument that there is an inevitability of Scotland becoming the most heavily taxed part of the United Kingdom and that that will be done against the wishes of the Scottish people, who will never be consulted about it. We intend to have general elections in Scotland for the Scottish Parliament. This issue will come to the fore when we get to the next group of amendments, but the issue of the rate of tax will be decided in general elections by the Scottish people through manifestos put before them, just as it is for the rest of the United Kingdom.
Lord Forsyth of Drumlean
I venture to suggest that I cannot think of any way in which any politician of any party, with the setup as it is in respect of the taxation powers and the way that the block grant will be calculated—subject to later review, but even assuming that Barnett survives—and given the levels of public expenditure and the position we are in, would be able honestly to do other than to tell the voters that income tax will have to go up. The numbers simply do not add up.
Let us just take the promises being made by the First Minister. On the whole, if you promise people free health care, free prescriptions, free bus travel, free nursery care and free this, that and the other and you do not have the money to pay for it, whoever comes in will find it very difficult to reverse that. Those are all very expensive requirements. If a Chancellor of the Exchequer gives the First Minister in an election year a bisque so that he does not have to cut public expenditure to meet the budget deficit requirements and the cuts have to be made in the subsequent year, you are building up very substantial gaps. I said that the gap on the budget deficit was about £3 billion. A tax-varying power where one penny on income tax raises merely £400 million will not get you very far in that respect. It is a delusion. If anyone in this House believes that the power will be used to reduce taxation, I think they are misguided.
I entirely agree with the noble Lord that we must be careful to focus on the issue of independence. He is absolutely right about that. Where I believe that the Bill is playing into the hands of the nationalists is that they are saying: “Look, you cannot play golf with one club. You cannot run an economy simply by having limited tax-varying powers that relate to one part of the income tax yield. You need corporation tax powers so that you can get growth so that the yield goes up”. That argument has a certain degree of logic to it—if not, altogether, a degree of fantasy.
Some of us remember that the First Minister interrupted my noble friend Lord Lawson’s Budget, scandalised the House of Commons and was thrown out of the House. We are told now by the nats that that was done to protest about the poll tax. Of course, he interrupted to say, “That is an absolute outrage” when the Chancellor, my noble friend Lord Lawson, announced a reduction in corporation tax and income tax to the same rate of 25 per cent. So there is a fantasy here. We should be absolutely clear what we are doing here. We are committing Scotland to a position where it will have a higher rate of income tax. I am prepared to challenge anybody. Once these powers are in place and are being used—after 2015—I will be astonished if I am wrong about that, in the way that the noble Lord, Lord Robertson of Port Ellen, was wrong when he said that the Scotland Act would kill nationalism stone dead.
Lord Foulkes of Cumnock
I wonder whether the memory of the noble Lord, Lord Forsyth, goes back to the time when the Tories were very powerful in Scotland.
Lord Foulkes of Cumnock
They were, quite a long time ago. I remember it. This goes against the noble Lord’s theory that no one argues that taxes should be reduced. I remember what happened in Edinburgh when local councils raised about 50 per cent of their income themselves through the rates and got the rest through rate support grant. The Conservatives on Edinburgh council—they called themselves Progressives at the time but they were Conservatives—used to propose reductions in the rates and Labour proposed increases, with increased services. The Conservatives made quite a lot of headway by proposing rate reductions, with people having to pay less, and a lot of middle-class people around Morningside and Corstorphine—I live in Corstorphine, so I had better be careful—went with the Conservatives on that. Has the noble Lord given up all hope of arguing the case for tax reductions along the lines of his predecessors?
Lord Forsyth of Drumlean
Not at all. I do not remember those days but then the noble Lord is a little older than me. However, he is absolutely right. His key point was that 50 per cent of the revenue was raised on the rates. However, the Government are using this dodgy figure of 30 per cent, which excludes capital expenditure from the base line. If one were making a reasonable assumption of how much would be raised in taxation, the figure would be nearer to 15 per cent than 30 per cent, but it is only a small part. Of course, in those days Edinburgh council was run reasonably well. My point is that here we have a whole load of post-dated cheques and expenditure that cannot be afforded. It will fall on Scottish income tax and that will have a catastrophic effect on the Scottish economy in terms of both growth and the living standards of the people of Scotland. That is why I am saying that, if you are going to do this, at the very least make sure that you can blame it on the electorate who voted for it, rather than people stumbling into it without being aware of the consequences.
I do not like playing the part of Cassandra but the numbers are there for all to see, and they do not come only from partisan, political people such as me. Professor Bell at Stirling University has done a lot of work on this, and the numbers simply do not add up. I say to the noble Lord, Lord Browne, that Alex Salmond and the nationalists will use the fact that the numbers do not add up and that income tax will go up to blame Westminster, and we will get into the same old argument about the size of the grant and so on. If the noble Lord’s argument is, “Let’s not have the distraction of a referendum on Scottish income tax because it will mean that people do not focus on maintaining the union”, then it is an argument for which I have some sympathy. It is the most powerful argument that I can think of for dropping the Bill altogether and coming back to it after we have resolved that position. On the same basis, the noble Lord argues that it will be a distraction. Of course, whether it becomes a distraction will ultimately depend on whether Alex Salmond deigns to give us permission to pass it on for Royal Assent, and we wait with bated breath to hear his latest thinking on that.
We have had a good debate. I do not propose to press this to a vote but I urge my noble and learned friend and Members of the House to look at the arithmetic in relation to how this tax is going to work and what it is supposed to cover. I beg leave to withdraw the amendment.
“( ) If the application of the Scottish Rate would result in a Scottish taxpayer paying a higher rate of tax on non-savings income than an equivalent taxpayer in the rest of the United Kingdom, the Scottish Parliament shall consult interested parties before passing such a resolution.”
Lord Forsyth of Drumlean
My Lords, I do not propose to rehearse all the arguments that we have just had, although I am being encouraged to do so by the Front Bench opposite. However, I shall resist the temptation.
This amendment would require the Scottish Parliament to consult before setting the Scottish rate of income tax if it was intended that the rate should be higher than that of the rest of the UK. This seems to be a perfectly reasonable request. Some people may argue that the Chancellor does not consult before he sets a rate of income tax, but we are not talking about setting a rate of income tax here; we are talking about setting a differential rate of income tax within the United Kingdom, and that will have a profound effect. We are talking about setting a differential rate of income tax which applies to only certain types of income.
Following consideration of these matters in the other place, there are still a lot of uncertainties about what the impact will be. I am not clear about that and perhaps my noble friend will be able to enlighten us. For example, what is the position on tax reliefs with a higher rate of Scottish income tax? Will tax reliefs on charitable contributions apply at the higher rate? Will all allowances based on gross income apply against the Scottish rate or the English rate if there is a differential? If the Scottish Parliament sets a higher rate, I think it is very important that representatives from business, charities, pension funds and other institutions are given an opportunity to be consulted on the likely impact and incidence of the tax.
Lord Lyell
I strongly support my noble friend on this amendment. I hope that I have brought with me the correct route plan for the groupings, because there are several other amendments that I should like to refer to, if I may. I find that with Amendment 53A are grouped Amendments 54A, 54B, 54C and 54D. Am I right?
Lord Forsyth of Drumlean
Perhaps I should have made it clear that these amendments are being degrouped, so we are just discussing Amendment 53A.
Lord Lyell
Shall I be able to refer to them at a later stage? I assume that they will be called and that I shall not lose my chance to speak to them. With regard to Amendment 53A, I strongly congratulate my noble friend. I received a very kind and satisfactory answer from my noble and learned friend about non-savings income but Amendment 53A seems to apply particularly to what I call the ritual dance over whether the Scottish Parliament may or may not do something. I may be enlightened about that when we come to the other amendments that were in this group, and I assure your Lordships that I shall not desist when we come to Amendments 54A, 54B, 54C and 54D. I see my noble friend on the Front Bench giving some form of assent, so I give him warning that I shall raise the matter when we come to those amendments. However, I strongly support what my noble friend Lord Forsyth has said on Amendment 53A.
Lord Davidson of Glen Clova
Perhaps I may add some further Angusian support for the amendment, recognising that Angus is well represented in relation to this particular amendment. It has already been observed by a number of noble Lords that the underlying purpose of the Scottish rate of income tax is to bring real accountability to the Scottish Parliament on behalf of the Scottish taxpayer. As the noble Lord, Lord Forsyth of Drumlean, says, decisions on this tax will have a profound effect and will of course be extremely important for the Scottish Parliament. Therefore, we on this side agree that there should be an obligation to consult interested parties, such as business, charities and pension funds.
The only point that I would raise is that such an obligation to consult might also be useful were a lower rate of tax to arise. I immediately appreciate that this amendment comes from a quarter that does not envisage such a possibility but, perhaps on a logical basis, there may be a reason for both higher and lower outcomes requiring consultation.
Lord Forsyth of Drumlean
I completely agree. I think that if the proposal were to lower the rate of income tax, something so out of order would be going on that it would certainly be desirable to consult.
Lord Davidson of Glen Clova
If such an event came about, any retractions that might be required from any quarter could also be added into the consultation. We support the amendment.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, as my noble friend Lord Forsyth of Drumlean has explained, Amendment 53A would require the Scottish Parliament to consult interested parties prior to passing a resolution that would see a Scottish taxpayer paying a higher rate of tax on non-savings income than the equivalent UK taxpayer. Of course, my noble friend has also explained in passing that there is no such requirement on the UK Government to consult interested parties when they make similar decisions.
There are two reasons why the Government do not see merit in my noble friend’s amendment. First, the underlying purpose of the Bill is after all to provide for greater financial accountability of the Scottish Parliament to its electorate and give the Scottish Parliament a real stake in Scottish economic performance. I hear, and heard in our previous sitting, my noble friend’s doubts about that, but that is the purpose of the Bill. Devolving the right to set a Scottish rate of income tax to the Scottish Parliament is absolutely key and central to that, which clearly my noble friend accepts. In devolving that key power, I do not believe that it is right for the Government to impose conditions on how the power is used. Ultimately, as the noble Lord, Lord Browne of Ladyton, pointed out in the previous discussion, the Scottish Parliament is and will continue to be subject to regular elections. My noble friend seems to be blithely suggesting that somehow the income tax rate will go up and up in Scotland without reference to the fact that it might not be an election-winning strategy. The Scottish Parliament should not be fettered in the consultation processes through the legislation.
Lord Sassoon
I shall, if I may, continue and complete the two legs of this argument. If the setting of the Scottish rate becomes part of the existing budget process of the Scottish Government, my noble friend’s amendment will be unnecessary because currently the draft Scottish budget is published in September or October, following which the public and Scottish parliamentary committees are consulted on its proposals. A budget Bill is then typically passed in the spring and, if the Scottish rate is announced as part of the draft budget and the resolution is passed as part of the Bill, the Scottish Government’s existing processes will already include the type of consultation that my noble friend envisages, irrespective of whether it is an increase in the rate or not.
Lord Forsyth of Drumlean
That is very helpful, but on the previous point that it would be wrong to constrain the Scottish Parliament and that this is about accountability, the Bill is bristling with provisions that require the consent of the Treasury before the powers can be enacted. Is it not a bit strange to argue that it would be wrong to constrain the Scottish Parliament in consulting the people in a Bill that requires and constrains it to consult the Treasury?
Lord Sassoon
No, I do not accept the logic of that. We can debate as we go through which powers require what sorts of consents, but the central nub of the Bill is to devolve income tax rate-setting to the Scottish Parliament. That is what is envisaged. As I say, I believe that it should be done in a clean and clear way and it is then for the Scottish Parliament and the Scottish Government to decide what consultation there is. As I pointed out, the Scottish Government at the moment consult in a very sensible and open way for their budget Bill. There is no reason to doubt that they would do something sensible and proportionate with the new power.
To answer my noble friend’s question about allowances of one kind and another in the context of a higher Scottish rate, the position is that the Government are consulting with representatives from the pension industry, charities—which he specifically mentioned—and other interested parties through the Scotland Bill technical groups. There will be a technical note setting out proposals in these areas after the Bill receives Royal Assent, so it is very much work in progress. My noble friend identifies important issues but, on the basis of my explanation, I ask him to withdraw his amendment.
Lord Forsyth of Drumlean
My Lords, I know that I am beginning to sound like a broken record.
Lord Forsyth of Drumlean
The noble Lord is unkind. I asked a question about the position of charities and charitable contributions in respect of this Scottish income tax regime. It strikes me as a bit strange that by this stage of the Bill—after all, we are talking about a Bill that has been around this place for more than a year—the various groups that have been consulting and the technical groups that have been grinding on have not reached a conclusion. To be told that this will happen after Royal Assent means that we are being asked to buy a pig in a poke. We are being told to go along with this and, “By the way, after the Bill is law we will tell you what its effect will be”. That is the opposite of what parliamentary scrutiny is supposed to be about. In my day as a Minister, first of all you had to get your policy right; you then had to get your drafting right; then you had to go through the legislative committee. If you turned up and could not answer all the questions, dot all the “i”s and cross all the “t”s, you went back to the bottom of the queue and lost your place in the Queen’s Speech.
Here we are, more than a year on. I am not making a difficult point; it was made by honourable Members on both sides during the passage of the Bill in the other place—almost a year ago. At that time, the answer was the same as that given by my noble friend now—that it will be dealt with by the technical committees, and that the Government hope to report shortly. I will withdraw the amendment on the basis that I will table it again because at the next stage of the Bill my noble friend ought to be able to answer those questions. People in Scotland who are running charities will want to know this. If we are asked what will be the impact of the tax, is the answer, “We are not sure but we will tell you after the legislation has been passed”? If the answer is that, for example, for people paying the Scottish rate of income tax—if it is higher—on the amount that is given to the charities, only the English element will be allowable, and we discover that only after Royal Assent, just think what the nationalists would make of that as an argument and how aggrieved the charities would be.
Lord Lyell
Before my noble friend comes to an excellent conclusion, I say that he is most optimistic about this group. I understand that it is called the high-level group—that is what the Institute of Chartered Accountants of Scotland told me. My noble friend says that we have just spent a year on this. I say with humble duty to the Committee: you ain’t seen nothing yet. When we come to Clause 30 stand part, I shall refer back to 1998. I think that my noble friend and the Committee will be interested to see what was said then. When we see what was said then, what is in the Bill today and the discussions that went on in another place, the word “snail” comes to mind—and makes this look like Concorde. I support what my noble friend has said and look forward to the next amendments, when we come to them under the guidance of my noble friend on the Front Bench.
Lord Forsyth of Drumlean
I think that is mildly critical of my noble friend. However, I accept that the procedures that are adopted for the consideration of the Budget may very well cover the point, and I certainly would like to study them. I beg leave to withdraw the amendment.
“80CA Referendum on increasing Scottish rate of income tax
(1) This subsection applies if the motion tabled by a member of the Scottish Government for a Scottish rate resolution proposes that the basic, higher or additional rate of income tax for a tax year for Scottish taxpayers is to be above the rates set for taxpayers in the rest of the United Kingdom as determined under section 6(2) of the Income Tax Act 2007.
(2) If subsection (1) applies Her Majesty must by Order in Council cause a referendum to be held throughout Scotland about whether the basic, higher or additional rate (as the case may be) of income tax for the relevant tax year for Scottish taxpayers should be set as proposed in the motion.
(3) If the majority of the voters in a referendum held by virtue of subsection (2) vote in favour of the proposed rate or rates of income tax the Scottish Parliament may consider the motion for a Scottish rate resolution under section 80C.
(4) But if they do not, the Income Tax Acts have effect for that year in respect of the rate of income tax that was the subject of the referendum.
(5) For further provision about referendums held by virtue of this section see Schedule (Referendums on commencement of sections 30 to 32 or increasing Scottish rate of income tax).”
Lord Forsyth of Drumlean
My Lords, I shall speak to Amendment 54A which goes in the revised grouping with Amendment 54E. Again, the matter was considered and raised in the other place, I think by the opposition spokesman. I have put down an amendment that clarifies the position on the liability of members of the armed services to pay Scottish income tax. During consideration in the other place, people repeatedly asked for clarification on how Scottish income tax would apply to members of the armed services. My concern is, if someone is stationed in Scotland and is living in barracks, are they liable to pay Scottish income tax? Ministers promised—
Baroness Verma
My Lords, may I press the noble Lord for a little clarity? Is he speaking to Amendment 54 or to Amendment 54A?
Baroness Verma
Does the noble Lord wish to move Amendment 54? It needs to be taken before Amendment 54A.
Lord Forsyth of Drumlean
I apologise. I just say to my noble friend that it really is impossible if we have one piece of paper that is different from the rest. I raised this privately and was told that the Whips’ Office is not prepared to issue another piece of paper. I am reasonably involved in these amendments, and I am finding it very difficult. I was looking at the other list of amendments as opposed to the revised, revised list of amendments. That is why I was moving Amendment 54A, and I apologise. The noble Baroness wants me to move Amendment 54. We have debated that; it was in the first group.
Lord Forsyth of Drumlean
My Lords, having managed to get my amendments in a row, I should like to contribute briefly to this debate. I have only one question for my noble friend. There was a definition in the Scotland Act of a Scottish taxpayer, which was required in order to implement the variable rate, to which we were told that the Scottish people had given their consent. Will he tell us specifically what was wrong with that definition that requires all these clauses in this Bill?
Lord Davidson of Glen Clova
My Lords, it might clearly be seen that this group raises significant issues. The Scottish rate of income tax is plainly a major innovation in the structure of UK tax. Where one has a major innovation in taxation issues, usually simplicity is regarded as a virtue. I suggest that simplicity and clarity would be very clear virtues here. The questions that have arisen include definitions. I should like to raise certain of these points. The definition currently being suggested—unlike the bygone definition under the variable rate—is by reference to,
“an individual who is resident in the UK for income tax purposes”.
There is no statutory definition of UK residency for tax purposes but, helpfully, there are 86 pages of guidance which are subject to frequent revision by HMRC. In seeking clarity, will there be a way in which the Government will give some guidance as to how specifically the taxpayer for Scotland will be defined and how residence will be defined?
The Chartered Institute of Taxation has suggested that there should be a statutory residence test for the UK. It would be very interesting to hear from the Minister whether steps are being taken to put in place such a test. The chartered institute is not alone. As the noble Lord, Lord Lyell, indicates, the Institute of Chartered Accountants of Scotland has raised this question, as has the Federation of Small Businesses and CBI Scotland. They all seek to see a concrete definition of residence for this tax. What are Her Majesty's Government doing to address these concerns from the professional experts in the area?
The noble Duke, the Duke of Montrose, raised the question of close connection and the test being employed. Oil workers living in England but commuting to a Scottish oil rig will not have a close connection but the Scottish resident who works in England, returning to Scotland at weekends and holidays, will, apparently, be defined as a Scottish taxpayer. It will be interesting to hear the Minister’s answer to the question of how the Government will deal with mobile workers. They may find it impossible to know where they might be until a day count is carried out at the end of the year.
Concerns have also been raised that there may be unfairnesses that, through a loose definition of Scottish residence, may permit wealthy individuals to arrange their affairs to avoid a higher rate of tax. Plainly, if this is lawful, it is lawful, but it may raise questions as to the extent of avoidance that might take place. It will be interesting to hear whether that has been considered.
It is inevitable that there will be disputes in relation to the definition of residence. Are mechanisms to be put in place to deal with disputes in relation to the application of the rules? Will there be a tribunal system with a right of appeal or will it simply be left to the courts? Where will we stand on this?
I turn to questions of non-UK residents, which tend to excite from time to time. Do the Government agree that a non-UK resident working in Scotland is liable to pay tax in Scotland? Should this be at the Scottish rate? The Bill currently provides that, for example, company directors, sportsmen and entertainers undertaking duties wholly in Scotland would pay UK income tax on income earned entirely in Scotland. Does that seem to be the correct way forward with a Scottish income tax? Employees inevitably will go to their employers in order to seek information on their tax status. They are more likely to do that than to go to the call lines of HMRC. What are the Government doing to support employers, particularly small and medium-sized enterprises, so that they in turn can support their employees in their inquiries?
More broadly, concerns have been expressed by many, including the Chartered Institute of Taxation, that there will be a need to staff up properly to meet an expected flow of difficulties and questions in respect of Scottish income tax. The approach that HMRC adopts towards staffing is one of considerable importance because taxation is perhaps one of the most complicated areas of legislation. While the Scottish Parliament may be able to create new taxes, the questions that will arise are likely to be highly complicated and require a considerable amount of professional input in order to permit clarity to be seen by the Scottish taxpayer.
Another question has been raised which I think might be the subject of a separate amendment but, like the noble Lord, Lord Forsyth, I am not entirely clear on what the running order is at the moment. It concerns the split year. Currently no account is taken of split years where someone may be a Scottish taxpayer for one part of the year and a taxpayer somewhere else in the rest of the United Kingdom for the other parts. The problem is that if one is defined as a Scottish taxpayer at the beginning of the year, it appears that one remains a Scottish taxpayer for the entire year. That may not seem entirely fair or satisfactory. It is perhaps a little unfair to the individual who moves to another part of the United Kingdom, and it creates difficulties for Scottish employers or indeed UK employers who may find themselves having to deal with Scottish rates of income tax in respect of employees who are far away from Scotland. It is a curiosity and seems to be slightly cumbersome. One would be given some kind of confidence that this is going to work well if the Government could indicate how these types of issues will be dealt with. Other changes might be required in relation to pension deduction rules. Should such rule changes be effected through primary legislation by the Scottish Parliament or should they simply be done by subsidiary legislation? It is plain that the former would avoid the lack of clarity that secondary legislation can sometimes create.
One further area of avoidance on which some assistance might be helpful is how Her Majesty’s Government propose to deal with avoidance of Scottish income tax rates by the use of the personal service company. Such a company registered in England would presumably permit the taxpayer to draw dividends from an English company. Those do not appear to fall within the Scottish rate of income tax. Again, this might seem slightly curious.
In relation to the self-employed, it would be useful to know whether the Government have particular proposals that they wish to put in place on how self-assessment tax returns will proceed. Are they to be altered or will they remain the same? In relation to benefits, inevitably there will be an impact on how they operate in the context of the Scottish rate of income tax. Benefits are assessed on after-tax income. If the Scottish rate is higher, and there is a view that it will always be higher, that will have an impact on benefits because presumably the benefit recipient will be entitled to a higher rate of benefit. How are Her Majesty’s Government going to deal with this rather complex problem? If taxation is one of the most complicated areas of our legislation, benefits can certainly give it a pretty good run as the second most complicated area. If, of course, the Scottish tax rate were lower—I accept that this is a possibility—mechanisms may be required to deal with the benefit by reducing it. How is that going to be dealt with?
I accept that I have bombarded the Minister with a range of questions for which I do not seek immediate clear answers. It would be wholly unfair to do so.
Lord Forsyth of Drumlean
When the noble and learned Lord says that he does not expect immediate answers, I would point out that we are at the final stages in the final weeks of this Bill, and he has raised a number of very important points, if I may say so—not least one that I had not thought of, which is that everyone can get around this by setting up a company in England and paying themselves in dividends. Since I had not thought of it, I would like to have an answer to that and to the other questions. If there are loopholes of this kind, they need to be plugged before the Bill reaches Royal Assent.
Lord Davidson of Glen Clova
I am guided by the noble Lord, Lord Forsyth, as to how one should approach the Minister. I note what he has said and I hope that I have at least given the noble Lord some useful advice that will allow him to look at certain issues. However, I will await the answers from the Minister.
There is one further point that I should raise with the Minister, which to an extent echoes what the noble Lord, Lord Kilclooney, said. We are in a position where devolution seems to be taking us to where we may have a separate tax system in Scotland, in Northern Ireland, possibly in Wales and in England. Under the coalition Government there is a new Office of Tax Simplification. It would be helpful to know whether some guidance might be sought as to how simplification might be assisted. I do not mean that entirely frivolously because it is plain that this is an area of great complexity. It would be useful at least to recognise that there may be a step away from a unitary tax system to something that is more complicated, so guidance on simplification from every quarter might be useful. In relation to the various amendments, it will be detected that we are broadly in support of seeking clarity.
Lord Forsyth of Drumlean
As my noble friend is dealing with these issues now, it might be in the interests of saving a little time if he addressed the position of members of the Armed Forces.
Lord Sassoon
I am very happy to address the position of the Armed Forces, but, if my noble friend will allow, we should perhaps deal with that when his amendment on that subject—if he wants to move it—comes up a little later.
Lord Sassoon
I will come back to that point because the question of credits is very important. I am happy to talk to that but let me answer one or two of the other questions that have already arisen. I shall pass over some of the detailed questions that are largely in the same category as some that I have already addressed.
On the question of safeguards and appeals, the appeals process will apply as it does to appeals and disputes with HMRC across the rest of the UK. That is clear and straightforward and, in general, applies to a number of the concerns of the noble and learned Lord, Lord Davidson of Glen Clova.
Let me address the issue of personal service companies as that has been somewhat topical recently. The Calman commission recognised that the changes would need to apply the Scottish rate of income tax to income from savings and dividends. The changes needed to apply the changes to savings and dividends would be prohibitive and so, as noble Lords know, savings and dividends are not within the scope of the Scottish rate of income tax. However, HMRC’s compliance work, including that relating to IR35, will continue to ensure that all taxpayers pay the correct amount of tax and national insurance contributions, including those who are liable at the Scottish rate. As is evident, all noble Lords who are here today are expert in these matters and I hardly need remind them that the aim of IR35 is to eliminate the avoidance of tax and national insurance contributions through the use of intermediaries such as personal service companies or partnerships. The noble and learned Lord is right to be concerned about this but the matter has been considered by HMRC in the construct that we are talking about today.
Lord Forsyth of Drumlean
Could the Minister elaborate on that? Setting up a bogus company in order to avoid tax is clearly black and white, but where someone living in Scotland who meets the test has multiple sources of income, perhaps through being on several boards and so on, surely they could legitimately set things up so that their only income was paid as dividend income and therefore avoid, quite legitimately and within the rules, the Scottish tax. Or is he saying that there will be some additional anti-avoidance measures?
Lord Sassoon
My Lords, depending on the nature of the scheme, it may or may not be caught by the anti-avoidance rules that already exist. Clearly HMRC, in its compliance role, will have to ensure that the issue of avoidance is fully addressed. These are complex areas and perhaps my noble friend will permit me to consider whether there is anything I can do to help where we see new areas of avoidance, if any, potentially being opened up, and what the technical thinking is about how these might be closed down. Some of the areas referred to by my noble friend sound as though they are getting precious close to artificial schemes that would be covered at present. However, let me take the matter away.
Let me address a couple of more points. On the broader question of the noble Lord, Lord Foulkes of Cumnock, of what had changed since the workshop, yes, I appreciate that the workshop raised a number of issues and I wrote to all noble Lords who were there answering the questions that arose. There have not been any changes proposed as a result of the issues that came up but it was a useful session. As noble Lords who were there will know, HMRC was there and listening hard. All the issues raised were already being thought about and, of course, this will be reflected in the guidance. It was a useful session because it will inform the drafting of the guidance. As the noble and learned Lord, Lord Davidson of Glen Clova, said, there will need to be clear guidance around this issue and therefore the more questions that are raised generally—but, please, not immediately—will help HMRC with the drafting of the guidance that will be needed.
Finally, I want to come back to this question of benefits and the universal credit, which is a very important area. The clause does not address it directly but it would be wrong to dismiss it at this point. The universal credit forms the background against which we must look at this. As noble Lords know, the universal credit is going to deliver a dramatically improved, simpler benefits system that smoothes the transition into work and improves work incentives. By 2016, when the Scottish rate of income tax is proposed to come into effect, the transition to universal credit will almost be complete, as that will be finished by April 2017. Universal credit is expected to be awarded on the basis of income net of tax, as existing income-related benefits are now. If the Scottish rate and the UK rates differ, then net incomes may of course differ depending on the amount of income tax paid, so that it is possible that there would be a difference to an individual’s universal credit entitlement as a result of the Scottish rate.
However, it is worth bearing in mind that many factors determine an individual’s net income and that a range of local factors could determine their universal credit award, such as housing or childcare costs. The Scottish rate would be another factor to be taken into the calculation. The extent of any divergence of entitlement would depend on a number of factors, including the prevailing rates in the United Kingdom, the rate set by the Scottish Government and whether an individual’s income is subject to income tax at all. I hope that gives the noble Lord some reassurance that the linkage with universal credit has been carefully considered.
Lord O'Neill of Clackmannan
I am grateful to the Minister for seeking to respond to this very complex issue. The kind of people who are likely to be affected by this may well be those who are currently employed in the public sector and whose wages are being considered for possibly no longer having a national rate. We could have the anomalous position of someone working for a local authority in Berwickshire being paid the same rate as someone in Northumberland—which is probably less than some other parts of the county—but ending up, because of the universal credit, getting paid more through benefit compensation than people south of the border in Cumbria or Northumberland, because they are being charged a higher rate of tax in Scotland. This kind of anomaly is going to create all kinds of difficulties. This form of taxation may not be the cause of it, but it will certainly be an exacerbating factor and have social consequences of quite a dire character.
Lord Forsyth of Drumlean
My Lords, I was going to follow up on the noble Lord’s point by saying that one of the consequences of this will be that the Scottish rate of income tax is higher in order to fund the Parliament’s additional commitments, but the English taxpayer is going to have to foot the Bill for the increased benefits payments that arise. Will my noble friend make arrangements so that the additional cost of the benefits that arise, because of the increased taxation being levied on benefit recipients, is taken from the Scottish block grant?
Lord Sassoon
My Lords, as I have tried to explain—and we can talk about the block grant at another point—the key point for these clauses and the interaction with the benefit system, which is very relevant, is that there will be a range of factors that will already be taken into account in calculating net income for the purposes of universal credit. I do not think that is conceptually any different for somebody who is working on one side of the border and living on the other. As we have been discussing during this really useful and important debate, the main-residence test will be the key driver here for most people. That will underpin all these considerations. In a sense, the points that the noble Lord has raised in relation to benefits are actually income tax points, which I have tried to cover by explaining that we are keeping this as simple as we can.
Lord Forsyth of Drumlean
I appreciate that my noble friend may not have had briefing or thought about the question of benefits, and I must say that I had not thought about it until the noble and learned Lord, Lord Davidson of Glen Clova, and the noble Lord, Lord O’Neill, raised it. But it is an important point because of how very small changes in income make a huge difference to the benefits that people are entitled to, because of the nature of the taper. So there is the effect on the individuals of the use of these powers by the Scottish Parliament; they will not be dealing with the Scottish Parliament or Scottish Government but with the Department for Work and Pensions.
There is a serious point here, because if the Scottish Parliament substantially raised income tax so that net incomes were lower there could be very significant increases in benefit costs arising from that action. My noble friend finished his speech by saying that this was all about increasing accountability of the Scottish Parliament for its decisions, but how can it be increasing accountability if the result of its decisions was to send a bigger Bill to my right honourable friend Iain Duncan Smith in his department and perhaps, thereby, create pressure on payment on benefits in England because of the unexpected consequences of this provision? So this is a transfer payment.
Before we get to the next stage, could my noble friend have a word with his colleagues whose responsibilities lie in this area and write a letter to those of us taking part in these proceedings, indicating how the circle will be squared?
Lord Forsyth of Drumlean
I am most grateful for that guidance and I apologise for having spoken too early to this amendment. We have had quite a long debate about the incidence of liability for Scottish income tax. I thought that I might be able not to move this amendment, which is why I interrupted my noble friend and asked him to say something about the Armed Forces. I am very concerned about the position of people serving in the Armed Forces who may be stationed in Scotland, and whether they will be liable for the Scottish income tax. This is an important point which touches on a later amendment—which the noble and learned Lord, Lord Davidson of Glen Clova, mentioned—to do with the period to which Scottish income tax relates. Regardless of whether the test is no longer met, this could create an anomalous position in respect of servicemen.
During consideration of the Bill in the other place, the Government promised to bring forward a definition that dealt with servicemen. I have included one in the amendment—which is probing and not meant to be the answer—in the hope that I might provoke my noble friend into providing an answer that makes the system simpler. Judging by his remarks about the very concise definition in the 1998 Act and the definition in the Bill, that may mean that it looks more complex. However, at the moment, it seems that the position of people in the Armed Forces who perhaps live in rented or service accommodation is not clear. I beg to move.
Lord Sassoon
My Lords, Amendments 54A and 54E would add this new condition—condition D—to the definition of a Scottish taxpayer. If I understand rightly, my noble friend’s intention here is that a serving full-time member of the Armed Forces should be a Scottish taxpayer only if their main place of residence for any part of the year is in Scotland and that residence is a property that they own rather than one provided by their employer.
The Government have given careful consideration to the treatment of serving members of the Armed Forces in relation to the Scottish rate of income tax. We have consulted with the Scottish Government and following that consultation the Government have decided that members of the Armed Forces who meet the close-connection test should be liable to pay income tax at the Scottish rate. Prior to the introduction of the Scottish rate, HMRC will work with the Ministry of Defence to ensure that guidance is available to service men and women on their particular circumstances.
My noble friend raises a perfectly reasonable question about whether there is or should be an alternative test. At present, however, members of the Armed Forces will be Scottish taxpayers if they meet the close-connection test. It is difficult to see any justification for distinguishing between those who rent and those who own property, or the extent to which members of the Armed Forces do or do not rent property from the Ministry of Defence rather than having their own. Therefore, we believe it is appropriate to keep the basic test also for members of the Armed Forces. On that basis, I hope that my noble friend will withdraw the amendment.
Lord Sassoon
My Lords, they will pay the Scottish rate of tax only if they meet the close-connection test that is at the heart of the clauses we debated in the previous group of amendments. It therefore entirely depends on the close-connection test, and particularly where their main place of residence is.
Lord Forsyth of Drumlean
Further to that point, this is a circular argument. My amendment chose to alter the provisions in the Bill because the test of close connection does not deal with the circumstances that the noble Lord just mentioned. On my reading of new Section 80E, which defines close connection,
“where T has 2 or more places of residence”,
a soldier may have one residence in the family home in Northern Ireland and the other may be barrack accommodation in Edinburgh or some other part of Scotland. As I understand it—the Minister can tell me if I am wrong—under that definition the soldier would be liable to pay Scottish income tax. That is clearly and absolutely not fair. He might be in Afghanistan or Scotland. No one expects him to pay Afghan tax.
I tabled my amendment to suggest a possible remedy, although it may not be ideal—perhaps my noble friend can comment further. I may be wrong but my recollection is that during consideration of this matter in the other place Ministers said that they would come forward with a view. My noble friend seems to be saying, “Well actually, soldiers are the same as everyone else”. They clearly are not the same as everyone else, and are not in the same position as someone who works for the Royal Bank of Scotland who gets posted from London to Edinburgh. I do not want to prolong the debate by talking about the military covenant and so on, but these service men and women are paid very poorly for the job they do, and therefore the burden of increased taxation could be significant.
What my noble friend said was very welcome if it was that where such soldiers are caught by Scottish taxation they will be compensated by having their gross salary increased so that their net position remains the same. That would be fantastic, but can we have that as an undertaking from the Government and perhaps have it written into the Bill at a later stage? Perhaps my noble friend will come forward with an amendment to achieve that purpose. Could we then also work out a system similar to the transfer payment that we mentioned when we talked about the impact of a higher tax rate on welfare payments that would be made in Scotland? Such a system would involve a transfer payment from the MoD budget to compensate for the increased revenue that was being raised from tax in Scotland. The MoD therefore would need to be compensated for that by a reduction in the Scottish block grant.
Lord Maxton
I am rather confused by this. After listening to the question of the noble Lord from Northern Ireland, I can see a situation arising in which a soldier could be posted to, say, Edinburgh, and could rightly show that his family, wife and children live elsewhere in the United Kingdom—in Northern Ireland—whereas a single soldier in the next room would be resident in Scotland, and therefore on a different rate of pay.
Lord Forsyth of Drumlean
I agree with the noble Lord, which is why my amendment proposes that if they are in military rented accommodation, they should not have to pay. Another way to deal with it would be to give them the choice of where they pay their tax. As it stands, their position is anomalous. I must say to my noble friend that if I were a member of the armed services listening to him saying that there are a number of options that the MoD will look at, I would not be very satisfied. We need clarity, particularly because so many Scots serve in the armed services and so many bases to which members of the forces are deployed are in Scotland. On the argument about accountability, as my noble friend said, many of them will not have had the opportunity to vote in the Scottish parliamentary elections on the taxes that will be imposed on them.
The military are a special case, and my noble friend ought to say that he will take this away and come back with a government amendment to deal with it, either in the terms that he suggested—that the MoD would provide compensation—or some other terms. Simply saying that the Bill provides for it and it is just about applying the test of close connection will not do.
Lord Sassoon
My Lords, at the risk of repeating myself, the Government undertook to come back, having looked at this again. We have; we consulted the Scottish Government; and we consider that there are lots of individual situations that can be called anomalous, but that there are just lots of individual circumstances related to Armed Forces personnel and a lot of other categories of people who should be taken into account when considering how the Bill will operate. On reflection and after consultation, it was decided that the basic test of close connection should apply to the armed services, as it will to everybody else. I accept that how it works out will depend on an individual’s circumstances.
As I explained as clearly as possible, not only will guidance be given so that individual members of the armed services know how to interpret the test, but—I repeat again—in the event that Scottish and UK rates differ at any point in future, the Ministry of Defence will consider exploring options to mitigate the effects of different rates of tax by using existing processes used for personnel serving abroad. The metric is already there for service personnel sent abroad.
In answer to my noble friend’s further point, I do not believe that that should be written into the Bill. It is something that the Ministry of Defence does in the normal course of events—it looks at the anomalies, in his terms.
Lord Forsyth of Drumlean
My Lords, I shall try once more with my noble friend. Perhaps he could translate the language that he used, which I recognise as coming straight out of the script of “Yes Minister”. I know that this is fed to him from elsewhere and we are not supposed to notice but, when he said that the MoD would use its usual procedures and look at all the options, did that mean that the MoD would pay the tax if soldiers stationed in Scotland were subject to a higher rate of income tax? If that is clearly and absolutely understood, I am less concerned about the definition. However, his language was a bit fuzzy and he did not really seem to make that absolutely clear. If he is giving an undertaking on behalf of the Treasury and the Government that servicemen stationed in Scotland will not lose out as a result of the incidence of Scottish income tax, I shall be very happy to withdraw my amendment.
Lord Sassoon
The words were carefully considered. I have put them on the record twice and my noble friend knows perfectly well that I am not going to go any further, whether I have a script or not. The Ministry of Defence will do just what I said it will do in these circumstances, if and when they arise.
The Duke of Montrose
My Lords, it is probably not my role to get the Minister off the hook in any way but we are, quite rightly, taking the sober and, one might say, realistic view that Scottish tax might go up. We are obviously missing what one might consider to be the almost messianic view of Alex Salmond that everything is going to be paid for by North Sea oil, renewable energy, and marine and wind energy, and that tax rates might go down.
Lord Forsyth of Drumlean
Picking up the last point made by my noble friend the Duke of Montrose, the Bill does not provide for North Sea oil, wind energy or any of those things, and that is why the tax will go up. If Alex Salmond were here, that is what he would say and it is what he will say. He will say that the Scottish rate of tax has to go up because Scotland does not have the power to deal with all these other things. I can write the script; it is not very difficult. The tax is going to go up.
I thank everyone who has participated in the debate. I think that my noble friend should be very influenced by the words of the noble Lord, Lord West, who knows a bit about the military. He should also be very influenced by the position in Ulster that has been spelt out. It is simply not fair to expect members of the Armed Forces who are deployed and living in barracks in Scotland to pay a higher rate of tax. When my noble friend says, “We consulted the Scottish Parliament and it was happy to leave it as it is”, of course it was happy to leave it as it is; it wants the money. It is in its interests to have as many people as possible paying. My noble friend shakes his head. Why is it not in its interests?
Lord Sassoon
It is simply that it is a matter of principle how tests should apply to different categories of people. It is not a numbers game as to how many will necessarily fall into what categories. It is a matter of principle as to how members of the Armed Forces should be treated. The Scottish Government—not the Scottish Parliament, to correct my noble friend—believe that the proper principle here is that the close-connection test should apply.
Lord Forsyth of Drumlean
I stand corrected. If my noble friend followed any Scottish business, he would realise that the Scottish Parliament and the Scottish Government are treated as the same thing by the First Minister.
I am so pleased that my noble friend has made this point. It is a matter of principle that members of the armed services who are deployed to Scotland, living in barrack accommodation, who have no choice in the matter, being under military discipline, should not be required to pay the additional tax. If the Government take the view that the additional tax should fall on them because it is administratively convenient for them, they should get a clear and absolute undertaking that the Ministry of Defence will meet the costs of that. The costs should fall not on the English taxpayer but should be rebated back by the Scottish Parliament. Otherwise it is a transfer of money from the MoD to the Scottish Government because they have put taxes on members of the armed services who are stationed in Scotland.
I will happily withdraw the amendment but we will come back to this at a later stage in the Bill. I advise my noble friend to discuss with his colleagues how he can improve the position. I do not believe that it is sustainable. It is an extremely unfair position, and for us to be doing it at this moment—of all moments—when the whole country is very conscious of how much we owe the armed services, would be a mistake. I beg leave to withdraw the amendment.
“(1A) If the activity which allows T to meet conditions A, B, C or D is undertaken for some but not all of the tax year then T shall be a Scottish taxpayer only for that period of the year and a UK taxpayer for the remainder of it.”
Lord Forsyth of Drumlean
My Lords, I want to touch on this briefly. It was a point alluded to by the noble and learned Lord, Lord Davidson of Glen Clova. This is about fairness and I hope that my noble friend the Minister is not going to tell me that there is a principle involved here. I see a principle, which is that you should not be taxed for something that you have not received.
As drafted, the Bill provides that if at any time in the tax year someone is defined as a Scottish taxpayer but then changes his status, my noble friend says that he will have to pay the tax. Perhaps he is one of those members of the armed services, who is stationed in Edinburgh from April to May and then goes somewhere else for the rest of the year. He will have to pay the Scottish rate of income tax for the full year, not only for the period when he was defined as a Scottish taxpayer. That cannot be right. I can see why it is administratively convenient for the Revenue and the Treasury. They have thought up the idea of having different tax rates in the United Kingdom but I do not see why taxpayers should have to bear the burden. It is unfair and my amendment provides that liability to pay the Scottish tax should arise only for the time when someone is getting the benefits of the services and political representation that the Scottish Parliament provides. I hope that my noble friend will accept this as a matter of principle and on grounds of fairness. I beg to move.
Lord Sewel
My Lords, I do not want to keep on going back to 1997-98, but this was the sort of problem that arose then. I shall take the argument slightly further forward, because we now hear that the Welsh Assembly wants to have tax-varying powers. That is very understandable. If the same test is applied in Wales as has been applied in Scotland, it would be possible for a person to be a national taxpayer in Scotland and a national taxpayer in Wales for the whole of a tax year.
Lord Sassoon
I repeat that if the noble Lord, Lord Myners, had been able to be here for the earlier discussion, the key question about the residence test in this Bill is that it builds on UK residence; you have to be a UK taxpayer before the question of the Scottish status applies. We discussed that at some length earlier, and the whole concept is to keep it as simple as possible for the basic overlay of the Scottish status on the UK status. Exactly the same thing applies in respect of this proposed amendment—which goes directly to his challenge—which is that theoretically we could find more perfect concepts but we have to live in the real world. We want to make this fair but we want to make the tests workable for both the individual and, of course, HMRC, but particularly for the individual.
Lord Sassoon
Perhaps I can come back to my noble friend’s point before he jumps in again. He gave an example to make a particular point, but I should have drawn his attention to the fact that the example he gave of residency of two months—April and May—in Scotland of course does not make that individual a Scottish taxpayer. The basic test, as we have discussed at some length, is if your sole or main place of residence is in Scotland for the majority of the tax year. We need to be very careful about what examples we give.
Lord Forsyth of Drumlean
That is definitely a point to the noble Lord. I was thinking on my feet and of course he is quite right. If he wants, I can spend the next 10 minutes giving him examples where it does apply but I suspect he would rather I did not.
Following up on the point made by the noble Lord, Lord Myners, it is the case that for wealthy people who are non-doms, the Revenue can accommodate them. My noble friend said—I thought very unfairly—that the noble Lord, Lord Myners, had not been here for the bit of the debate where he dealt with these issues. I have been here since the beginning and nothing he has said addresses this point.
Lord Sassoon
My Lords, I am sorry, but we discussed at some length the fact that the Government are working to introduce a statutory residence test that deals with these things. Forgive me, but that goes absolutely to the heart of the point that the noble Lord, Lord Myners, is raising. I suggest that we have actually gone to this point very directly this afternoon.
Lord Forsyth of Drumlean
I think that my noble friend is missing the point that is being made; namely, that the Revenue is able to deal with people who are flitting in and out of being liable for UK tax. It has nothing to do with the test of residency. In this case, it is about fairness and whether you are liable for the tax arising from whether you are a Scottish taxpayer or an English taxpayer. The noble Lord was simply making a parallel case and asking why the Revenue can accommodate some people. I suspect the reason is that there are a few of them and they pay a lot in tax. The Inland Revenue might look at this and say, “Oh well, we could have a lot of people who might be moving and it will be difficult”. I thought that the whole argument for this was based on it being terribly simple because it simply means changing someone’s tax code. Tax codes are changed all the time. What is so difficult about changing someone’s tax code when they have moved from Scotland to somewhere else or to change their liability for Scottish income tax during the course of the tax year?
Lord Sassoon
My Lords, let me have a go again. I think that my noble friend has answered the key part of the question. As we have been discussing for a long time today, we want to make this construct as simple as possible for the great majority of people. That is why the test is the close-connection test, which comes back essentially to where the main residence is for the majority of the year. It is as simple a test as there can be.
As my noble friend rightly points out, these questions about non-residents, non-doms and all that refer to a comparatively tiny number of people with complex tax affairs. Suggesting that the Revenue can deal with individuals with complex affairs and usually high incomes is quite a different matter from requiring the majority of the Scottish population, for example, to have to deal with a complex test of coming in and out of Scottish tax treatment.
Lord Forsyth of Drumlean
My Lords, we have had a very useful debate. I am most grateful to the noble Lord, Lord Myners, for his contribution, which woke us all up a bit. I am not persuaded by my noble friend’s argument, at the end of which I think we got to the bottom of the matter—it simply is going to be too much trouble and, as regards these people whose tax status changes during a year, there might be rather a lot of them and we are not too bothered about it.
I venture to suggest that for those people the difference between perhaps paying Scottish tax and English tax might be significant. When my noble friend says, “Well you would be dealing with the whole of the Scottish population”, I do not think that the whole Scottish population will change their tax status in any one year. The Revenue is quite capable of dealing with changes in circumstances in a variety of ways. When my noble friend says that he wants to keep it as simple as possible, perhaps I may suggest that the way in which to do that is to drop this whole idea of having a separate Scottish income tax.
This is the Government’s idea and if they are going to change the tax system, they should be able to make sure that it is workable and treats people fairly, and that the answers to our questions are delivered. For the life of me, I cannot see how it can be right that someone who moves from Scotland to England continues to have to pay Scottish tax. Of course, at the other end of this building, none of this was discussed because it was guillotined and there was no opportunity. But I would not like to be a Member of Parliament living in England who receives a letter from a constituent asking why they are having to pay Scottish income tax when they are now living in England. I do not know the answer. If we sent a standard reply from the Treasury saying, “Well, it is administratively simple to make it this way”, that would be a vote lost and a very unhappy constituent.
Lord Maxton
When the noble Lord talks about voting, someone moving from Scotland to England would be able to move their vote. They would not be able to move their tax apparently, but they would be able to take themselves off the register in one place and put themselves on the register somewhere else.
Lord Forsyth of Drumlean
I would guess that that must be because electoral registration offices have far more staff than HMRC, so it is probably easier for them to cope with these matters. This is an important principle. The idea is that it is just too difficult and too complicated. When we raise the issue of how employers are going to deal with a payroll where people are constantly changing from being liable for Scottish or English tax, we are told by Ministers and the Treasury, “It is very simple. It is just a matter of changing the tax code, so it is not a problem”. But when it comes to the Treasury having to take account of liability, if it is about collecting the tax, then it is far too difficult and complicated. I think we are getting a bit of doublespeak here. I do not say that that applies to the Minister—
Lord Sewel
Before the noble Lord reaches his peroration, as I am sure he will shortly, does he not accept the point I tried to illustrate somewhat earlier that although it may be unfair for a person to move from Scotland to England and still pay a Scottish tax, it would be totally iniquitous for a person to move from Scotland to Wales, if Wales gets tax-raising powers, and finish up paying two lots of extra tax?
Lord Forsyth of Drumlean
I have considerable respect for the noble Lord, who of course was the architect of the whole devolution thing and of the Scotland Act.
Lord Forsyth of Drumlean
I was about to go on to say that I am not sure that this problem would have arisen under the definition which applied in the 1998 Act. When I asked my noble friend why he had abandoned the definition in that Act, he told me that he had done so in order to achieve clarity and to make it simpler. It is not simpler, as the amendment we are discussing illustrates. If the noble Lord says that the anomaly he speaks of would not arise under his definition, which was certainly shorter, perhaps we should go back to the drawing board. However, my noble friend does not look as if he wants to do that.
We have had a good debate on this—
Lord Myners
Before the noble Lord, Lord Forsyth, concludes, I should like to say that I agree with just about everything he has said, except that he said in respect of non-domiciles that the probable reason why the Government can handle all this in terms of processing is because there are very few of them and they pay a lot of tax. In fact, there are far more of them than is customarily imagined and they pay very little tax.
Lord Forsyth of Drumlean
I must take the noble Lord’s word for it because he moves in those circles and I do not.
I return to the amendment. We have had a good debate, but I have to say to my noble friend that I will table it again and we will come back to it at a later stage of the Bill. I hope that he will consider this issue because I think that there is some feeling about it in the House. Indeed, he himself has acknowledged that it is not fair but administratively convenient. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, I have to tell the Committee that if Amendment 54C is agreed to, I cannot call Amendment 54D.
Lord Forsyth of Drumlean
This amendment would delete the listing of elected Members as being caught by the Scottish tax, but it is not because I seek special privileges for elected Members or that I wish to prevent them having to pay what I believe will be the higher Scottish tax. Throughout our debates today, the Minister has been at great pains to point out that he wants to have a simple scheme, one that is easy to understand and under which everyone would be able to identify whether they were liable for Scottish tax. What I do not understand is why it is necessary to set out in the Bill that Members of Parliament for constituencies in Scotland, Members of the European Parliament for Scotland and Members of the Scottish Parliament are all Scottish taxpayers. Why can the criteria not be applied by them in the same way as everyone else? We will come on to this at a later point, but some of us who live in Scotland and are Members of this House are slightly puzzled and bewildered as to why Peers with a Scottish connection have been left out; I will come on to that in a later amendment.
Lord Lyell
I congratulate my noble friend Lord Forsyth. I want to call him Lord “Bazooka” Forsyth because he aimed at those who do not pay tax. I am sure that he and my noble friend on the Front Bench will be aware that Members of the House of Lords are the only people in the United Kingdom who get their expenses between their home and their place of work—if you call this a place of work, especially on a day like this—paid, yet are not liable for tax. If you are a government Minister, you are liable for tax. I am curious as to why no fewer than seven of our government Front Bench are not paid. Perhaps my noble friend would take care about who is paying tax, and have a look around us. In the words of the good book, “Let he who is without sin cast the first stone”.
Lord Forsyth of Drumlean
Actually, I am not a tax expert. I think that my noble friend is taking us down a diversion, because Members of the House of Lords are not paid, they are reimbursed for their expenses. It is not a taxable benefit. My beef with the Bill is that it singles out elected Members for particular, special tax treatment. It does not really matter whether it is to their advantage or disadvantage. I was not raising a general point about the taxation of travel by Members of Parliament or Members of the House of Lords.
Lord Sassoon
Well, my Lords, let me give it a go. My noble friend is not easy to satisfy on these things, but I argue that it is entirely consistent with my arguments for the rest of this afternoon to say that this provision, as drafted, gives simple and clear guidance for a category of individuals, namely Members of any of the three parliaments, that they do, for the avoidance of doubt, have a close connection with Scotland and should therefore fall into the “Scottish taxpayer” definition. It is as simple as that. Once one accepts, which I am not sure that my noble friend does, that the close-connection test should be at the heart of this, I suggest that this is a simple follow-on from that, an avoidance-of-doubt provision which is entirely appropriate. We have spoken today about members of the Armed Forces who may not have a choice about where they serve, but it is right that a Member of any Parliament who has chosen to serve a Scottish constituency is for the avoidance of doubt treated as a Scottish taxpayer. They have a clear connection to Scotland which should be recognised and which is consistent with the basic provisions of the test that we are talking about.
Lord Kerr of Kinlochard
The noble Lord, Lord Forsyth, has drawn attention to a point of principle here. Creating special categories is, by definition, undesirable. It is probably the case that every single person who meets the three categories listed here would qualify as having a close connection under the other tests of what a close connection is. It is very unlikely that any of them would not meet the test of residence and the number of days resident, so why create this special category? I cannot see a practical argument for it but I see an argument of principle against it.
Lord Forsyth of Drumlean
My Lords, I do not think the Minister made the case for having this in the Bill when he was trying to give an example of someone who might be caught, notwithstanding the reminiscences of former Liberal MPs for Scotland, or whichever party they were from. This does not exist nowadays. If you were an elected Member and there was an idea that you were avoiding Scottish income tax, the practicalities would be death and destruction. The measure is completely unnecessary. As the noble Lord, Lord Kerr of Kinlochard, who was advertised on the annunciator as the noble Lord, Lord Norton of Louth—I say this in case Hansard gets it wrong—said, this is a bad principle.
On the earlier amendment, I referred to there being a real injustice in respect of the armed services and I was arguing for a specific provision for them. My noble friend responded by saying, “We think that the existing tests cover it and therefore I am not going to do it”. I cannot reconcile these two competing bits of logic. If his position is that the criteria provide a clear view as to whether or not you are caught, why single out Members of Parliaments? I suspect its origins can be found back in the debates about the impact of a Scottish income tax and whether Scottish MPs would be caught, and that has been written into the Bill.
The provision is completely unnecessary and I hope that my noble friend will think about taking it out. Apart from anything else, it would reduce the number of column inches of legislation which a Government committed to it would produce. I beg leave to withdraw the amendment.
“(d) a judge, peer or civil servant with responsibilities for, or a close connection with, Scotland (see section 80E)”
Lord Forsyth of Drumlean
My Lords, having just argued for that measure to be removed from the Bill, and having listened carefully to my noble friend’s arguments, which I do not believe are sufficient to justify maintaining it there, and given that he is going down the track of listing in the Bill people about whom there might be some doubt but who ought to be caught by the income tax, it seems to me that we should extend this beyond elected Members of Parliaments to include others. I am thinking of Appeal Court judges, Peers and, of course, civil servants who have a close connection to Scotland. Amendment 54D starts a list, to which others are welcome to contribute, to add to those Members of Parliaments who have been singled out as being liable for the Scottish tax.
I am not seriously putting this forward—it is a probing amendment to try to illustrate the absurdity of the position. However, if my noble friend persists with his view that Members of Parliament are included, I would certainly be tempted to come back to it. I do not see why constituency Members of the other place should be automatically deemed to pay income tax, whereas, say, without being personal, a member of the Supreme Court or a civil servant who perhaps comes down to work in the Scotland Office is not treated in the same way. I am longing to hear what my noble friend has to say on this apparent dichotomy in their treatment under the Bill.
Lord Sassoon
My Lords, I see a clear distinction between the previous category of people and parliamentarians, who are different in a number of respects, not least because they are specifically tied, in a very clear way that we well understand, to the electorate and a constituency in Scotland. However, the extent to which a judge, a Peer or a civil servant could be said to have responsibilities for Scotland will vary enormously from case to case. My noble friend has said that this is a probing amendment and that he is not serious about it, so it would be wrong to criticise the amendment for the flaws in its drafting, but goodness knows how one would go about defining what “responsibilities” means in this context and how the test would apply in practice. It would be very difficult.
I certainly agree with the sentiment that we do not want to go down the slippery slope that the noble Lord, Lord Kerr of Kinlochard, identifies of putting lots of people into some special category. Obviously, many judges, civil servants and, dare I say it, Peers will have a close connection with Scotland and will therefore be caught or encompassed by the definition of “Scottish taxpayer” as defined in the draft Bill. I am with the noble Lord, Lord Kerr, in that I do not think we should go further down this route other than in the specific case of the parliamentarians, where the considerations are different in a number of respects, not least because they are very specifically tied to Scotland in a way that this other, looser, category would not be. It is right that the individuals identified in Amendment 54D should have the conditions A and B applied in the same way as all other taxpayers. On that basis, I would yet again ask my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
Well, I am absolutely persuaded by my noble friend’s argument that it would be wholly inappropriate to list these people in the Bill, but I am not persuaded by his suggestion that Members are in some special category that requires them to be defined in that way. Indeed, the only example that my noble friend could come up with was the example of someone who had lost their seat and had moved to England. I certainly lost my seat, but I did not move to England. That is really stretching it, because presumably if they have lost their seat it no longer applies, but he was arguing that they should pay tax for the part of the year when they were not actually liable for tax, which related to one of my previous amendments. We are really therefore in Humpty Dumpty territory here: when I say something means something, it means what I say. There is an anomalous position here, which the amendment highlights.
I do not agree on the point about judges. The last thing I want to do is to increase the taxes of someone for whom I have considerable regard, such as the noble and learned Lord, Lord Hope of Craighead, who lives in Edinburgh and sits in the Supreme Court. I do not know whether it is formal or informal, but in the Supreme Court we have always had an outstanding judge. Sadly, one of the Scottish judges, Lord Rodger, passed away. Clearly, those judges have a connection to Scotland, and I could make as strong a case as my noble friend makes for Members of Parliament, but I would not dream of doing so because I think that it is rubbish. I do not think that the arguments apply.
It is a very bad principle to use legislation as a chalkboard to write political statements. It could very well backfire. There is not the slightest possibility that there will be a reduction in income tax as a result of the power being available to the Scottish Parliament, unless a Government come in who are both mad and committed to slashing public services in a big way. However, if it worked the other way round and, of all the Members of Parliament sitting in the Chamber, those from Scotland paid a lower rate of tax because it was written into statute, that would be a tricky thing to defend, not because they were liable for the lower rate but because it had been written into statute that their status applied in that way.
These are not trivial points. It has been a useful debate, if only to illustrate that this has not been properly thought through. We will return to it at a later stage. I beg leave to withdraw the amendment.
“(6) Any organisation collecting, or administrating the collection of, income tax from Scottish taxpayers shall consider appeals against its decisions and formal complaints from individuals by operating a system which includes—
(a) a two stage appeal process within the body,(b) independent review by The Adjudicator’s Office, and(c) final review by the Parliamentary Ombudsman.(7) Appeals against the decision that an individual has met a condition to be a Scottish taxpayer will be considered under the process set out in subsection (6).”
Lord Forsyth of Drumlean
My noble friend the Minister dealt with this matter in our discussions.
“(3A) Before exercising any power under subsection (1) or (2), the Treasury must consult Scottish Ministers, the Scottish Parliament and other interested parties.”
Lord Forsyth of Drumlean
This amendment requires the Treasury to consult before altering reliefs, disapplying or nullifying enactments. In an earlier debate when I suggested that the Scottish Parliament should have to consult before raising a higher rate of income tax, my noble friend said that the whole point of the legislation was to create accountability for the Scottish Government and that they should be free to carry out their powers without any specific requirements to consult. The Treasury using these powers to alter reliefs could have a significant effect on the baseline revenue of the Scottish Parliament. We touched earlier on the position of charities, for example, which remains unclear. It therefore seems to me that at the very least, the Treasury should be required to consult before using these extensive powers. I beg to move.
Lord Davidson of Glen Clova
My Lords, I support the noble Lord, Lord Forsyth, in seeking further areas of consultation. How true it is that the Scottish Parliament, under improved devolution, will have greater powers. None the less, it remains part of the United Kingdom and therefore it would be very important that consultation on areas which could have a significant effect throughout the United Kingdom should be put in place by the Treasury.
Lord Sassoon
My Lords, Amendment 54G would indeed require the Treasury to consult interested parties, specifically including the Scottish Government and Parliament, on its plans. It may be helpful to explain the Treasury’s new approach to tax policy-making, which was published with the 2010 Budget, because that sets out the Government’s commitment to consult on tax changes in legislation. Secondary legislation made under the power in proposed new Section 80G would be treated no differently, so we already have a commitment to consultation through the Government’s general approach to consultation on tax changes. Indeed, in the context of the Bill and through its technical groups, the Government are already consulting on further changes needed as a result of the Scottish rate. The Scottish Government have been involved in these discussions, so I have absolutely no difficulty with the underlying concern that my noble friend seeks to address here. I simply point him to the fact that since 2010, under the new framework which the coalition Government have put in place, we are doing all these things already on a UK-wide basis under the policy that we announced.
It is important to recognise, nevertheless, that any changes which are made as a consequence of the introduction of the Scottish rate will still need to fit within the wider UK income tax system. I believe it is correct that while the Government are committed to consulting with the Scottish Government, Ministers and Parliament, and with others as part of our general approach, the Government should nevertheless have the final say on how these matters are handled, just as they do on how matters are handled across the UK tax system. On that basis, I again ask my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
I thank my noble friend for that answer. I have noticed that there is quite a lot of consultation going on these days on tax policy, in the run-up to the Budget. I accept that the Government have made strides in this respect and that my amendment may indeed be redundant. I beg leave to withdraw it.
Lord Forsyth of Drumlean
My Lords, this amendment would delete subsection (4) of proposed new Section 80G, which provides for the Treasury to make changes to tax retrospectively. The whole basis of the Bill is that the Scottish Parliament will raise a proportion of its own money and should plan its budgets accordingly. If the Treasury were to use this power to change the tax base retrospectively, it could have a very dramatic impact on the provision of services and the financial position of the Scottish Parliament. Therefore, the amendment seeks to tease out from the Minister exactly how it is intended to use this power since there are obvious dangers in having a retrospective ability to change the rules of the game well into the financial year. It could cause great trouble for an Administration in Edinburgh and might even be used in a highly undesirable political way. I beg to move.
Lord Sassoon
My Lords, as my noble friend said, Amendment 54H would remove the retrospective element of the power to make supplementary changes. It gives me the opportunity to reassure the House—which I hope is what my noble friend seeks—that the Treasury does not seek a general power to impose retrospective legislation. This is a very limited power to make any changes retrospective to the start of the tax year. Because of the timing of the budget cycle, most finance Bills receive Royal Assent after the start of the tax year and so contain proposals that come into effect before Royal Assent. It is therefore important that, where necessary, any consequential change made using the order-making power can also take effect from the start of the tax year. The power is identical to that in Section 79(4) of the Scotland Act 1998 for the Scottish variable rate. I hope that my noble friend is reassured that this is just a necessary provision to take account of when Royal Assent is given to finance Bills and that, yet again, he will be prepared to withdraw his amendment.
Lord Forsyth of Drumlean
My Lords, on the basis of that very helpful response, I am pleased to withdraw my amendment.
“(4A) Before exercising any power under this section, the Treasury must—
(a) consult widely on its plans, and(b) obtain the consent of the Scottish Parliament.”
Lord Forsyth of Drumlean
Amendment 54J requires the Treasury to consult and obtain the consent of the Scottish Parliament before using its powers to change tax rules by order. This relates to the point that I made previously: the Treasury could knock out the financial planning of an Administration in the Scottish Parliament. If it proposes to do this, it should have to obtain the consent of the Scottish Parliament. I beg to move.
Lord Davidson of Glen Clova
My Lords, we offer our support to the noble Lord, Lord Forsyth, for the intention that lies underneath this amendment. There is clear utility in there being coherence within the UK tax structure. I stress “coherence” rather than “unity”, given the intention to devolve these powers to Scotland, and say nothing further.
Lord Sassoon
As my noble friend said, this point is very similar to the issue that came up on Amendment 54G. I suggest again that the coalition Government’s new approach to the transparency of policy-making, and our commitment to consulting in advance on tax changes and legislation, means that not only the Scottish Government but any other interested party will have an opportunity, under the normal framework that we now apply, to see what is going on. It will be transparent to the Scottish Parliament as well.
I think that this is consistent with what the noble and learned Lord, Lord Davidson of Glen Clova, said. If I interpret coherence as opposed to unity in the correct way, I believe that the process is achievable through the approach that we now adopt to consultation. However, as I said in relation to the previous amendment, we can achieve that while not fettering the hand of the Government in how they go about consulting on and consenting to taxation changes that may impact on the wider UK tax landscape any more than it is fettered in respect of other aspects of UK taxation.
Lord Forsyth of Drumlean
I am afraid that I am not as convinced by the response to this amendment as I was by the response to the previous amendment, as this one is rather more far-reaching in its possible impact. Given what my noble friend said, and the Government’s view of the Scottish Parliament, I have no doubt that they might well be inclined to do this anyway. However, Governments come and go; it is important that the rules of the game should be clear.
One aspect of the Bill that is very striking is the number of powers that are given to the Treasury to bring forward regulations and changes that are not specified, are not clear and which in the other place were subject to comments from Ministers to the effect that there was a working group looking at this and something would be published in due course. I am not absolutely persuaded on the matter. I have every faith in my noble friend ensuring that there is consultation, but he did not quite deal with the question of why the consent of the Scottish Parliament should not be sought before using the powers. I hope that he will respond to that.
Lord Sassoon
I am not sure how much more I can do to help my noble friend on this point other than to repeat that we need to see that any changes that are made as a consequence of the introduction of the Scottish rate will fit within the wider UK income tax system. Therefore, in my view and that of the Government, this blanket provision goes a step too far. We are in favour of consultation but this provision would fetter the hand of the UK Government on matters that would impact on the wider tax architecture. Therefore, I believe that obtaining the consent of the Scottish Parliament is a step too far, although I completely accept the need to consult broadly.
Lord Forsyth of Drumlean
Perhaps I can help my noble friend. Perhaps I misunderstand the position but he speaks from the point of view of adjusting the rest of the tax system in the event of the impact of a Scottish tax. But what would happen if this was done the other way round? What would happen if the Treasury proposed to change the tax system in a way that would adversely affect the revenue base of the Scottish Parliament? As I understand it, as the Bill stands, there would be no requirement either to compensate it or to seek leave to do so. Perhaps I misunderstand what these powers enable the Treasury to do but that is my understanding. If so, surely it would be appropriate to seek the consent of the Scottish Parliament. Perhaps my noble friend is suggesting that that consultation would involve asking the Parliament and allowing the ability to ignore it. I can see a difficulty here. For example, suppose some new rule were to be introduced to provide substantial tax relief for particular categories—charities, pensions or some other relief. That could greatly reduce the tax base for the Scottish Parliament and, as far as I can see, there is no provision in the Bill to compensate it for that. There ought to be some basis on which the Parliament’s consent is sought.
I feel as if I have become a sort of advocate for devo-max on this, because I am making a case that might be made by one of the enthusiasts for devolution. However, I am doing that from the point of view that, if we are going to go down this track, we have to make it workable, and I am not sure that it is.
Lord Sassoon
Perhaps the difficulty here is that there is a broader principle underlying the matter raised by my noble friend that is completely fair but is not directly addressed by this technical provision. Ministers and Scottish government Ministers have agreed that there should be an underlying principle of no detriment. Now that I understand the matter, I can confirm to my noble friend that if there is a UK decision on income tax that impacts on receipts for the Scottish Government, they will be compensated. If that has teased out the important underlying point, I am happy to give that confirmation. My noble friend’s amendment, which would have a wider and different effect, is not the way to tackle this issue. However, I can reassure him that there is an agreement between Ministers and the Scottish Government that the no-detriment principle will apply, as it should do, along the lines he suggested.
Lord Forsyth of Drumlean
I am alarmed by that because my noble friend tells me that there is a no-detriment agreement, but there is nothing in the Bill that tells us that. Does it mean, for example, that if the Chancellor of the Exchequer were able to achieve his youthful ambitions and introduce a flat tax in the United Kingdom at, say, 25 per cent, the Scottish Parliament would be compensated for the loss of revenue that would arise? I do not understand what this no-detriment agreement means. Does it mean that if any change in the tax system resulted in a reduction of revenue in England, the Scottish Parliament would be compensated by sending it a cheque for the equivalent amount?
Lord Sassoon
My Lords, this is not something that has come out of the blue from my mention of it now. It has been quite clear from the start—in the Command Paper—that that principle should apply. I am merely articulating something that has been in the construct all along.
Lord Forsyth of Drumlean
It is reassuring to hear that, but can the Minister answer my point? Does it mean what I have just said?
Lord Sassoon
Perhaps it would help if I write to the noble Lord to make clear exactly how the principle is intended to operate before we get to the next stage of consideration of the Bill.
Lord Forsyth of Drumlean
I do not want to press my noble friend; I am happy for him to elucidate what the position is; but throughout this afternoon, his speeches have been peppered with the word “accountability” and how this is making the Scottish Parliament accountable. If the suggestion is that the Scottish Parliament get compensated for the effects of changes in the tax base in England by the English taxpayer, that is not accountability; that is subsidy. It is about maintaining the status quo.
My noble friend shakes his head. Perhaps I have got it wrong. I thought he was saying that if changes are made to the tax system in England which have the result of narrowing the tax base, the Scottish Parliament will be compensated by being sent a cheque. Is that not what he is saying?
Lord Sassoon
What I am saying, and why I disagree with my noble friend’s analysis, is that this is all about getting decisions about a certain part of the tax system to be made by the Scottish Government and the Scottish Parliament, and for the Scottish Government to be accountable to the Scottish Parliament and the Scottish people for a part of the tax system to have a clearer linkage between tax and spending in Scotland for the electorate and for the performance of the Scottish economy. Beyond that, there are certain areas where we want to ensure, as is only right and proper, that Scotland is not at risk of detriment because of decisions taken in interlinked parts of the tax system which disadvantage it.
Lord Forsyth of Drumlean
I hesitate to press this at this hour but, to give a real example, suppose that it is 2015. We are all enjoying paying these high Scottish taxes. There is a lower tax in England and the Government decide that they are going to introduce a far more generous scheme of tax relief on contributions to charity. Let us say that they make them wholly allowable and the result is that there is a reduction in the overall revenue available to the Scottish Parliament from the tax base on the Scottish income tax, because people are eligible for that. Of course, we are not yet clear whether that would apply to Scotland, but this power would enable the Treasury to implement a policy without any agreement of the Scottish Parliament and it would have a detrimental effect.
My noble friend appears to be saying that the answer to that is that they would be compensated for that, but there would be a transfer of resource from England to Scotland to compensate them for that change in the tax policy. Why would that be appropriate?
Lord Sassoon
My Lords, it has been a fundamental principle of devolution from the start that if a decision of one Administration impacts on another, the other Administration should be compensated. We are not doing anything different from the principle under which devolution has existed from the start. Yes, the tax base is shared, so if the UK changes allowances and thresholds, it is quite right that the effect of that should not fall to the detriment of the Scottish Government. As I said, that follows the general principle that applies across devolution spending, as it has from the start.
Lord Forsyth of Drumlean
My Lords, this has been a very illuminating debate. I have to say to my noble friend that this principle is bonkers. It says that if a Government take people out of tax by raising the threshold because they think that will help with welfare policy and encourage people to go to work because of the effects of the why-work taper, they follow the example that was given by the noble Lord, Lord Kerr, or they cut the top rate of tax—would that they would in order to generate growth and get the economy moving again—Scotland gets a cheque and gets the benefit. So a Treasury Minister trying to find the money to raise thresholds does not just have to find the money to compensate for the loss of receipts but has to send a cheque to Scotland to compensate it. It makes “We’re all in this together” rather strange because we are not all in this together. There is a different rule.
It shows the paradox of this whole Scotland Bill. If anything, it almost makes me become a devo-max person. It almost makes me think that we should go for fiscal autonomy, because it is absolutely bonkers. It is saying that this is not about giving the Scottish Parliament tax-raising powers and accountability for what it does but about taking the block grant and pretending that it is a tax-raising power and, when the tax-raising power does not quite work because of changes in the tax system, topping it up. This is just about recreating the block grant, calling it a tax-raising power and dressing it up as accountability. That is what this principle means. I have studied this quite carefully, and I think that if this principle is to be applied, it is quite shocking that it is not in the Bill, because it is fundamental. It changes the whole architecture. Not many people follow this subject, but I do not believe that among them there is an understanding that changes in the position in England will be compensated for by expenditure north of the border, if, indeed, that is the position.
I would like to give an example from ancient times when I was in the Scottish Office. In England, water was privatised; in Scotland, it was not. The result was that there was no expenditure on water services because they were provided by private companies in England. The result was that the Barnett consequences did not come to Scotland. Under the ancien regime, we did not get an extra grant from the Treasury to compensate us for not doing what would have been the sensible thing, which was to privatise water services in Scotland. This is wholly new, although perhaps I am wrong.
Lord Browne of Ladyton
I enter this fantastic debate, as it develops, with some trepidation. It has perhaps been less illuminating than it could have been because, with respect to the noble Lord, people are using terms very carelessly. This is not a comparison between taxation in England and in Scotland; it is a comparison between decisions that are made for the UK and the consequences of this provision being devolved to Scotland.
I am not going to go any further because if I try to extemporise I am in danger of confusing this debate even more. It may be better if noble Lords wait to see whether the Government write to show how this will work, as they intend to. It is far from the case that those who understand how this works are surprised by this no-detriment policy. This no-detriment policy is actually at the heart of what we are doing because it is about accountability for an element of the tax-raising power, and that has to be sustained. Therefore, decisions made by the UK Government for all of the UK that undermine that accountability have to be compensated for in a balancing mechanism.
I go no further than that. I keep it very general. However, many of these examples that have been used to try to explain what is going on here are very far off the mark because they are comparing apples and pears. This is about what the UK Government do and the effect of that on the principle that we are trying to establish in this Bill.
Lord Forsyth of Drumlean
I am most grateful for that very helpful intervention. I am glad that the noble Lord has a clear understanding of how this principle will be applied. However, I do not buy the argument that it is about the UK. Of course it is about the UK, but we still elect Members to the House of Commons from Scotland who are responsible for tax policy in the United Kingdom as a whole. If they support a Government who decide to cut taxes to create growth, they are accountable at the ballot box.
Let us take one of the recommendations of my tax reform commission—it has been abducted by the Liberal Democrat party—to raise the threshold for basic rate taxpayers. That is an example of something that would be compensated for. That is an example of a policy that is being applied across the United Kingdom. The threshold is being raised and it is very expensive. There is a substantial cost to it, and in order to achieve it other services are going to be less generously dealt with than they would otherwise be. Members of Parliament standing at a general election for the House of Commons are accountable for that. However, it is very odd indeed if it is argued that the Member for Stirling in the House of Commons is accountable for the policy that cuts the taxes, whereas the MSP for Stirling is not accountable because a cheque is sent north of the border to compensate for the consequences of this.
Lord Sassoon
Perhaps I might try again here. I do not think that my noble friend portrays it as it is going to be, and I am very grateful for the intervention of the noble Lord, Lord Browne of Ladyton. I am sorry that my noble friend portrays this as a great surprise. This was all discussed at length in the November 2010 Command Paper.
Lord Sassoon
It does not make it right, but what we are discussing this afternoon is nothing new. This has been on the table for 15 months or however long it is, a good long length of time. The essential point that we have to understand is that there is going to be a permanent adjustment, as my noble friend knows, to the block grant for the move of the Scottish income tax to Scotland. The compensation that we are talking about is merely that if the basis on which the carve-out of income tax changes so that the relationship between the adjusted block grant and the income tax that Scotland expects to raise changes because of a subsequent decision, in effect we are saying that the permanent deduction needs to be adjusted because we have changed the income base from what it was expected to be, which seems entirely reasonable.
This is not the blank cheque that my noble friend is portraying it as: that the UK Government will be prepared to write whenever the income tax changes. The deal with Scotland is that there will be a one-off change to be worked on, as my noble friend knows. If the basis of that is subsequently changed because the UK Government change the base on which income tax is raised, it is perfectly right and proper that a compensating adjustment is made. It is as simple as that. It is not that there is a double whammy for the UK.
Lord Forsyth of Drumlean
It may seem simple to my noble friend and it may have been discussed for 15 months, but I have to tell him that I am not a supporter of this Bill. I thought I made clear at Second Reading why I am not. I am somewhat surprised at the argument that my noble friend has put. The noble Lord, Lord Kerr of Kinlochard, put it quite clearly. I do not disagree about the impact of the policy but what is being said is that, if there is a change in the tax regime that results in the tax base being made narrower and from which people in Scotland will benefit, in addition people will benefit in Scotland by the cost of that change being added to the block grant. To me, that is double benefit and I do not see how that has anything to do with the accountability of the Scottish Parliament.
It arises because the Scottish Parliament is not solely responsible for tax policy, which would be an argument for fiscal autonomy that no doubt the noble Lord, Lord Foulkes, will put to us. However, the scheme in this Bill is a kind of charade whereby the Scottish block is always topped up regardless of the benefits that accrue to Scotland from the changes in the tax base, which cannot be right. I defy my noble friend to explain why, say, the Scots would get the benefit. Let us say that thresholds were raised to £10,000 so that no one earning less than that would pay income tax. That would have a dramatic effect on the Scottish block. I guess that it would be many hundreds of millions of pounds—perhaps £600 million or something of that order. My noble friend is saying that the Scottish Government would be compensated by being given that money, but the people living in Scotland would have benefited from the fact that they are not paying tax on the first £10,000. That cannot be right.
When my noble friend says, “Well, we have all known this for 15 months”, I had not appreciated that the situation was as stark as this. I thought that it might be a one-off thing at the start, but the idea that this should be a continuing matter is not about accountability; it is about giving people a guaranteed budget.
Lord Maxton
As the noble Lord understands it, would the reverse be true? If, say, Mr Alex Salmond decides that he has a project that he knows the Scottish people will support and he puts up the income tax to pay for it—for example, a free new hospital or something like that, on which he knows that the Scottish people will support him—will the block grant be cut accordingly to compensate for the fact that more money is now being raised in Scotland?
Lord Forsyth of Drumlean
I think the answer to that is no. As has been made clear, we are talking here about the Scottish block being compensated for changes in United Kingdom taxation policy. My difficulty with this concept is that the people in Scotland are within the United Kingdom. They benefit from those changes and then a compensating payment is made to the block grant to compensate for that, which cannot be right.
Lord Sassoon
First, I shall repeat what I believe I said earlier. This adjustment would go two ways. We have talked about so many things as being a form of one-way traffic this afternoon, but that is not the case. However, we want to make sure that the Scottish Government are accountable for what they are responsible for under the construct in this Bill, which is the effects of their powers to set a Scottish rate of income tax. They are not accountable either for a windfall gain or a windfall loss—if you can have a windfall loss—resulting from things that are done by the UK Government subsequent to the setting of the block grant adjustment. If we set out a worked example of how this will operate, I would like to think that it will be made clearer.
Lord Forsyth of Drumlean
My Lords, that is probably a very sensible suggestion. We have had a useful debate, if for no other reason than that it has persuaded me that there is a stronger argument for fiscal autonomy than I had thought, although it is not one that I accept. I beg leave to withdraw the amendment.
“(3) The tax may only be charged by the Scottish Government.
(4) The tax shall be set at a uniform rate across Scotland.”
Lord Forsyth of Drumlean
My Lords, by way of explanation, I felt that we had done to death compensation for the Scottish Parliament, which is why I did not move the amendment which would require the bill for costs of collecting Scottish income tax to be sent to the Scottish Parliament. We can return to that later in the context of a debate to which we have yet to come.
Amendment 58A is similar in its impact to Amendment 58C. It would simply ensure that if the Scottish Parliament decides to set different rates of tax as part of the development land tax powers that are set out in the Bill under Clause 33, they should be applied uniformly throughout Scotland. They cannot be used to create different tax levels in different local authority areas. I do not know whether the Government were thinking that that might be the case, and that is why it is not made clear in the Bill that the rate should be applied uniformly, or whether the Government think that it is desirable. The purpose of the amendment is to tease out the Government’s view on this. I beg to move.
Lord Sassoon
My Lords, I will speak to both Amendments 58A and 58C, which have similar effects—namely that they would require the Scottish Parliament to set uniform rates across Scotland for taxes on land transactions and on disposals to landfill. My noble friend’s amendments would be an inappropriate restriction on the power of the Scottish Parliament in this area. The purpose of devolving tax powers is to transfer some of the responsibility for public funding services in Scotland to the Scottish Government. My noble friend says that he has been converted to devo-max, whatever that may be, and that he wants more of it. Here is a good example of where we are suggesting in the Bill more devolution than the noble Lord would like through his amendment.
Accepting as I do that we should wholeheartedly support improvements in the accountability of the Scottish Parliament to the people of Scotland, the devolution of stamp duty, land tax and landfill tax is very important. The Calman report estimated that these could yield the Scottish Government over £600 million a year, so it goes to the heart of the accountability issue. Also, a key premise of the Calman report is for the Scottish Parliament to be fully accountable for its devolved taxes, a principle which the Government support. To achieve this, the Scottish Parliament must be allowed the full power to vary the rate of the devolved taxes. It is for the Scottish Government and its Parliament to take decisions over the design of the taxes through consulting the Scottish people and passing its own legislation. Scottish Ministers may well decide to set uniform rates of tax on land transactions, or on disposals to landfill, across Scotland, but I suggest that that decision is for them and not for this House or this Parliament. I cannot see a strong argument—any argument—as to why we should interfere with the Scottish Parliament’s freedom to set its own taxes across Scotland as it sees fit, once there has been an agreement that a particular tax should be devolved. For that reason, I urge my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
When my noble friend says that the Scottish Parliament should not have to apply it uniformly throughout Scotland and thatit could be used in different areas, does he mean the Scottish Parliament, or does he mean local authorities?
Lord Sassoon
To be clear, my noble friend talked about different areas. I do not know how a rate may be changed, but it would not necessarily be changed on a geographical basis. There could be changes of rate based on other parameters which would not necessarily be geographic. The policy and the ability to deal with these taxes are entirely devolved to the Scottish Parliament and the Scottish Government. It is for them, on a national basis, to decide how they design the taxes from thereon.
Lord Forsyth of Drumlean
My Lords, I can see how the Calman commission had to scrape around to find taxes that the Scottish Parliament could be allowed to levy. As my noble friend has touched on the amendment which deals with landfill, I shall, if I may, speak to that issue at the same time to save the time of the House.
I do not really have a problem if the Scottish Parliament wants to set the tax on landfill or on development land. I do have a slight problem with my noble friend’s suggestion that it could be different in different parts of Scotland, which he is enunciating as a principle, without it being clear who would set it in different parts of Scotland and who would get the money. If it is proposed that it should be possible for the tax-raising power to be devolved still further to local government so that we could have differences in different areas, the Bill should spell that out and make clear who is responsible for collecting it and who gets the money.
I can see how the development land tax could be used to make it more difficult to develop particular areas; I can see how it could be used positively—perhaps by not having the tax at all—to encourage development in particular areas. However, on the landfill tax—and I am all for competition in taxes—the idea that you should combine raising the revenue with creating some kind of competition between local authorities is a little worrying, because, on the whole, people do not like having landfill sites next to them and local authorities like having sources of revenue. I would have thought that if one was planning where the landfill sites were going, and wanted to have a sensible allocation and availability of landfill sites, how and where the taxes were levied would be rather important. I would feel much more comfortable if this power was being exercised by the Scottish Parliament on a uniform basis. If that is not so, the Bill should indicate how it would operate and who would do it. Just by devolving the power and leaving it to the Scottish Parliament, we may be creating difficulties caused by the desirability of the revenue over the proper planning of landfill and development activity throughout Scotland. Perish the thought that political and other considerations might fall into this, but I am very nervous about the laissez-faire attitude that my noble friend is taking towards this tax.
Lord Sassoon
Laissez-faire can be a good thing or a bad thing. I suggest to my noble friend and to the Committee that we must treat Scotland more respectfully than this. As Calman recommended, these are two taxes that should be devolved. If it is right to devolve them, as the Government believe, in line with the Calman recommendations, my noble friend should not suggest that it is inappropriate for the Scottish Government and the Scottish Parliament to determine—whether on a regional or any other basis—how they levy them. I am sure that all the considerations about the design of the taxes which my noble friend mentions, which are perfectly proper and important, will be taken into account by the Scottish Government and the Scottish Parliament. In our proposing the devolution of these taxes, that is precisely what is intended.
Lord Forsyth of Drumlean
Perhaps I may ask my noble friend just one more question. Does he think that it might be a good idea to devolve both these taxes to local authorities in England?
Lord Sassoon
I am sure that my noble friend is not proposing that the Scottish Parliament should somehow devolve the taxes on to England. I merely say that it is a decision for the Scottish Parliament and the Scottish Government, just as the UK Government decide how the taxes should be handled in the UK. The Scottish Government and Parliament may decide that the design of these two taxes should be much as it is now—I do not know. It will be for them. If they have a good reason for doing it differently in the circumstances of Scotland, that is what devolution is all about. It is their responsibility; their accountability.
Lord Forsyth of Drumlean
That is all very well and fine in theory, but I suspect that the answer to my question is that if the Minister goes back and says to his colleagues, “I have got this bright idea of devolving development land tax and landfill tax to local authorities in Scotland”, he will get about 10 boxes full of reasons why this would not be desirable—not least because it would introduce different rates of tax all over the country for people who are involved in housing and other commercial developments. It is hardly in line with the Government’s declared policy of simplification of taxation and less onerous regulation.
If I were to table a Question and ask what the Government’s policy is on this and why, I am sure that they would come up with a whole load of reasons. My noble friend has said, “Oh well, it is for the Scottish Parliament to decide”. No, it is not. At the moment this a uniform tax throughout the United Kingdom, as I understand it, and the Government have decided to devolve it to Scotland. In devolving it to Scotland, whether or not it will be circumscribed by a requirement to apply it uniformly is an important point. In considering what the impact might be on Scotland, my noble friend seems far more relaxed than in considering what the impact might be on England. If he says that that is central to the whole devolution idea and that we must trust the Scottish Parliament to use this power in this way, I just say to him that if, as I suspect will happen, the Scottish Parliament does devolve it but does not let the local authorities keep the money, he will find quite a number of English local authorities knocking on his door citing the precedent—and especially so if they decide to allow the local authorities to keep the money.
Rather than just saying, “Oh well, it is Scotland and devolution and so it must be a good thing to let them decide”, my noble friend might like to think about whether it would sensible to circumscribe this in some way. However, having discussed the matter, I am happy to withdraw my amendment.
“Air passenger duty
(1) In Part 4A of the 1998 Act (as inserted by section 28), after Chapter 4 (inserted by section 35) insert—
“CHAPTER 5Air passenger duty80L Air passenger duty
(1) A duty of excise which is levied on the carriage, from a Scottish airport, of chargeable passengers on chargeable aircraft, is a devolved tax.
(2) In this section—
“chargeable passenger” refers, subject to sections 31 and 32 of the Finance Act 1994, to every passenger on an aircraft if their flight begins at an airport in Scotland;
“chargeable aircraft” refers, subject to section 29 of the Finance Act 1994, to every aircraft designed or adapted to carry persons in addition to the flight crew.”
Lord Forsyth of Drumlean
My Lords, the effect of the amendment is to increase the tax-raising powers of the Scottish Parliament to include air passenger duty as part of its revenue. It is a probing amendment. I do not want to go back over earlier debates which provided for an order-making power for Ministers to designate new taxes as devolved taxes, which is a thoroughly undesirable innovation. It is dangerous because it is so open-ended in its commitment—notwithstanding the procedure, which is also undesirable.
In responding to the question of why there should be a general power for Ministers to allow the Scottish Parliament to introduce completely new taxes, my noble friend said that Calman said that there should be a general power to provide for specified taxes. Of course, in the Bill, that has been turned into any tax anybody can think of. I would like to see the Bill amended to bring it back to specified taxes. My noble friend will have spent longer reading all the consultation documents and the other material that has been produced than I have, but it seems that the aggregates levy and air passenger duty are two taxes that were specified by Calman but are not implemented. I thought it might help the Minister to include air passenger duty and the aggregates levy. There would then be no need to have the power to deal with the specified taxes, because they would already be in the Bill and we would have an opportunity to consider their merits.
I look forward to hearing the reasons why the Minister thinks that air passenger duty should not be devolved to the Scottish Parliament and provided for in the Bill. This is an example of where the Scottish Parliament might cut rather than increase taxes. It is a tax in a country that is highly dependent on tourism and on people who commute from Scotland to London—I suppose I ought to declare an interest here. It may very well make sense to get rid of air passenger duty, or not to tax aeroplanes rather than passengers, which has resulted in us all paying huge fares and being crammed into planes that are packed to the gunnels. The number of flights to Scotland is being cut, the fares are now astronomical—more than £500—and the air passenger duty is going up. I have been going to the car park at Edinburgh airport and observing it for the past 29 to 30 years. They have expanded it but I now see lots of spaces where there were none before. Air passenger duty has an economic impact not only on the business community but also on tourism and so on.
This is exactly the kind of tax that the Scottish Parliament might cut or reduce for economic benefit, although these are obviously arguments for the Scottish Parliament. I hope my noble friend will forgive me if I embarrass him, but I observed him answering a Question on the impact of air passenger duty on international flights, when he had to justify the way that tax bands operate in terms of countries and distance. It was one of those occasions when the Minister has a brief that will not stand up to scrutiny because clearly a mistake has been made somewhere along the line.
The Government seem to be very concerned about this, but if the Scottish Parliament was given these powers, it would also help—I note the noble Lord, Lord Foulkes, is not in his place—to change the position that we have at the moment where there is excessive dependence on a section of a narrow part of the tax base: the 10p on income tax. At every stage of this Bill, both the noble and learned Lord, Lord Wallace, and my noble friend have repeatedly told us that they are implementing the Calman recommendations—and that doing so was a manifesto commitment. This was a Calman recommendation and was consulted on. For all these reasons, I am longing to hear from the Minister on why it is not in the Bill.
I can see arguments against it. Indeed, someone sent me an e-mail from Newcastle asking me what I thought the effect would be on Newcastle airport. That is an important point. If the Scottish Parliament gets control of air passenger duty, I think that it will cut it and perhaps Newcastle airport will be able to persuade the Government that, worthy as the green agenda may be, this kind of tax is hugely damaging to our economy and to tourist interests. But that is a debate from another day. I beg to move.
Lord Kerr of Kinlochard
My position is diametrically opposed to that of the noble Lord, Lord Forsyth, on the general power. I agree with him that it would be good not to have the accountability element so heavily dependent simply on the extra tranche of income tax. However, it is up to the Scots to decide how or if they wish to move further, and on which taxes. The general power seems wholly reasonable, and for us to pick and choose air passengers or whatever seems a rather bad idea.
Mine is not a complete laissez-faire position. As I said in my debate with the noble Lord, Lord Sewel, on a previous day in Committee, a counterpart to a general power is a mechanism for neutralising the macroeconomic effect. You would be very rash to start to recreate the situation that we have seen in the eurozone with Greece and Germany. That is why I am very nervous about having devo-max or devo-plus, unless and until the monetary or borrowing consequences of greater fiscal autonomy are spelt out. When we come to the borrowing bit of the Bill, I will have something to say.
I do not know what the right rate is for air passenger duty, and I consider it irrelevant to the debate on the Bill. I doubt very much that Mr Salmond, with his green credentials, would follow the noble Lord, Lord Forsyth, in thinking that a lower rate would be the right one. There are many taxes other than this one that he might prefer to lower. But it is up to them, following the procedure that would require consultation with us. The lead should come from them.
Lord Forsyth of Drumlean
The noble Lord says that it is up to them. They want this power and Calman recommended it, and it is not in the Bill because the Government have not included it, even though they have been telling us that the Bill will implement the Calman recommendations. The legislative consent Motion that was considered by the committee of the Scottish Parliament specifically requests that it should be a condition of Scottish consent to the Bill that the air passenger tax should be included.
Lord Kerr of Kinlochard
As always, the noble Lord, Lord Forsyth, follows precisely the recommendations of the Scottish Parliament committee.
Lord Forsyth of Drumlean
The noble and learned Lord has not been listening to my speech. Frankly, I do not blame him—but I did say that one reason that I tabled this and the other amendment was to get rid of that general power, which I regard as highly undesirable. Perhaps he could help me; why is the fact that the UK Government are reviewing what they want to do about air passenger duty an argument against giving the responsibility to the Scottish Parliament? If it is decided that they are going to abolish or double air passenger duty, or whatever, the revenue may halve or double. We have already been told in a long debate that there is compensation for this, so why on earth would the Government not put it in the Bill now? The fact that they are reviewing it is surely irrelevant.
Lord Davidson of Glen Clova
It is not for me to answer for the Government. Doubtless that will be done in due course but, accepting the kind invitation for the moment, it is plainly desirable to have a coherent starting point. Simply to say, “This can now be devolved and the Scottish Government can set off on their own way, without any regard to what is happening in the rest of the UK”, might be unhelpful not only to the rest of the UK but to Scotland.
I apologise if I did not pick up on his enthusiasm for advancing this in order to reduce the power to create new taxes. I understand his concern about the extent of that power. However, it might be interesting to note that the Holyrood Scotland Bill Committee has accepted that once the future of this tax has been decided, it should be considered for devolution then. Therefore, it would appear that while the noble Lord, Lord Forsyth, is in advance of the Scottish Government in their demands for ever greater powers, at least in Holyrood there has been an indication that they are prepared to wait.
Lord Sassoon
My Lords, I think I should allow the noble and learned Lord, Lord Davidson of Glen Clova, to continue; he seems to have made the points in a way that I could not hope to match. I suppose I should do more than say that I agree with everything that he said and sit down.
I do not want to reopen all the discussions that we had in the previous Committee session but it is important to recognise that, as the noble and learned Lord said, there is an appropriate series of checks on both sides before any power could be devolved under Clause 28. I remind my noble friend that a similar power exists under Section 30 of the Scotland Act. I see the noble Lord, Lord Sewel, nodding. A power already exists for the Scottish Government to request new powers, including on taxation, under Section 30 of the Scotland Act. Perhaps I should not have gone into this territory, but it provides important background to this matter.
My other point is that Scottish Ministers referred to the Section 30 power when seeking legislative responsibility for a whole range of things, from firearms to consumer protection. As noble Lords will know, in each case the Government rejected the requests made by the Scottish Government. As background to this discussion about air passenger duty, it is important to remind ourselves that there are proportionate powers under Clause 28.
Lord Forsyth of Drumlean
I have the Explanatory Notes to the Scotland Act here. They state:
“Section 30 … permits certain alterations to be made to the legislative competence of the Scottish Parliament but only with the agreement of both Parliaments”.
As I am sure my noble friend will agree, tax has always been dealt with entirely differently, not least in the exclusion of this House from consideration of tax matters since the 1911 Act. Tax is dealt with by a procedure under the Finance Act and is subject to a proper Committee stage on the Floor of the House of Commons. I believe that that is still the case. To suggest moving to a situation in which taxes can be introduced and imposed by orders—which are not amendable and which, traditionally, we do not vote against in this House—is to stretch the elastic to breaking point.
Lord Sassoon
I merely refer my noble friend to the arguments that I made on this point in our previous Committee session two weeks ago. I will not repeat them because it would take up too much of the Committee’s time to refute those points. It is important, as other noble Lords, including my noble friend, have said, to remind ourselves of the context in which specific taxes are referred to in the Bill. I certainly agree that, as the noble and learned Lord, Lord Davidson of Glen Clova, said, the reason not to take the issue of air passenger duty further at this time rests partly on the existence of the powers in Clause 28.
Lord Sassoon
My Lords, I think my noble friend will find that taxation is set out in Schedule 5 to that Act, if memory serves. Section 30 can amend Schedule 5, so tax—
Lord Wallace of Saltaire
My Lords, it would be appropriate to allow the Minister to finish answering one point before the next one is made.
Lord Sassoon
I hope that I may finish. I merely wanted to remind noble Lords, as a background to this discussion of whether it is appropriate for this tax to be in the Bill at this time, that there is a power, which we debated extensively, that would enable air passenger duty to be devolved in due course, if appropriate. I also remind noble Lords that there are similar powers in Section 30 of the Scotland Act. Of course they are not exactly the same; they work in different ways. However, we are not going into uncharted territory. This is territory in which the Government have been requested to devolve powers—not tax powers, although they could have been requested, but powers in other important areas. The Government have consistently said no because they do not believe that the arguments for that have been made.
Lord Forsyth of Drumlean
Section 30 clearly does not provide for tax powers. But if my noble friend is correct and it does, then why does he need the powers contained in the Bill to implement the taxes?
Lord Sassoon
I thought that the noble Lord, Lord Kilclooney, asked me two questions. I answered one; I was coming on to answer the second; although I know that he asked them in the other order. It is completely clear that there will indeed be a permanent adjustment to the block grant for any devolved tax, including, if it came about, APD. That is unequivocal.
We need to consider the full impact. The Bill contains powers in Clause 28 which would enable the Government and Parliament to devolve APD should they decide to in future. Although I fully agree with my noble friend about the importance of the recommendation for APD, I agree on this point with the noble and learned Lord, Lord Davidson of Glen Clova, that now is not the time to amend the Bill. APD can be looked at on its merits under the framework of the Bill in due time. I therefore again urge my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
My Lords, the St Augustine approach to the Calman commission is upon us. We have heard repeatedly that the Bill is to implement the Calman recommendations, which included devolving air passenger duty. Now we are being told by both Front Benches that the time is not right: “Oh Lord, make us have air passenger duty, but not yet”. The reason that the time is not right is that the Government are reviewing air passenger duty. We learnt from the noble Lord, Lord Kilclooney, that the Government are prepared to devolve it to Northern Ireland and that the Secretary of State is prepared to give it to Northern Ireland. We are told that it would be difficult to include it in the Bill because there could be all kinds of implications because of changes to air passenger duty. We already have differences between Scotland and England. My noble and learned friend Lord Wallace will know the answer to this question, but I am pretty certain that highlands and islands airports are exempt from air passenger duty.
Lord Forsyth of Drumlean
Only one way. One-way tickets. Perhaps I may suggest that this is a possible area for the Office of Tax Simplification to consider. You can just see how a committee has sat down and said, “Which way is it? If you’re leaving Inverness there’s no air passenger duty, but if you’re arriving there is”. I am told that it applies in both directions for Inverness.
Lord Wallace of Tankerness
From memory, it applies both ways for Inverness but the relief is available only one way for airports in the islands and Wick. For the life of me I cannot remember in which direction. I think it is when travelling from the islands and Wick but I would have to check.
Lord Forsyth of Drumlean
So it is a policy that encourages emigration from the highlands and islands. The very fact that there is this degree of complexity torpedoes any suggestion that it would be possible to give this power to the Scottish Parliament now. Of course, if the regime changed then the revenue would change, and we have already heard at great length how this would be compensated for under the principle of “heads you win, tails you win”, which is apparently central to the Bill.
I entirely take on board the noble Lord’s chastisement. He was absolutely right. I tried to talk about the economic benefits but he is right to focus on the fact that this is not about tax. Actually, the tax revenue is not hugely significant but I believe that the impact of the tax could be, and he gave an example. I remember all the battles that we used to have in the late Lord Younger’s day about saving Prestwick, and I am aware of the stress and pressure on these islands services. I hope that I will not embarrass my noble and learned friend Lord Wallace but this is highly political to the extent that I think the Scottish Government leant on an airline—Loganair—to withdraw an invitation to him to address its 50th anniversary dinner. That is a disgraceful example of the poisonous way in which members of the SNP-led Government behave. Therefore, this is very political and very important to the islands, and I am disappointed that my noble friend is maintaining this St Augustine position, saying that he favours it but the time is not right.
The Earl of Caithness
For Wick and the islands, the duty is relieved on the way out, not the way in.
Lord Forsyth of Drumlean
So my noble and learned friend was right. That is odd, as it encourages people to leave and not to arrive. It is very strange, although I am sure there is an explanation for it.
Perhaps I may put it to my noble friend that it is entirely possible that the Bill will be amended at a later stage to remove this general power to create new taxes by order. It is a very important constitutional development which goes way beyond the importance of air passenger duty and the aggregates levy. It seems that my noble friend’s assumption that we can always just use this general power and not have the tedium of primary legislation may not survive the passage of the Bill through this House. What will he do then in order to give the Scottish Parliament the opportunity to benefit from air passenger duty? If the position of the opposition Front Bench is one of “not yet but this is something that we can do in due course”, I have to say that I think the chances of getting primary legislation to amend the Scotland Act to provide for air passenger duty in the absence of this order-making power are pretty limited. However, being a reasonable sort of chap, I have a compromise to propose to my noble friend. Many of us in this House do not like the general order-making power for introducing new taxes. This is being justified on the basis that we might want to introduce air passenger duty at a later date, or introduce an aggregates tax at a later date—I do not think that we have heard about any others.
Why not bring forward a government amendment to amend that order-making power in line with the Calman recommendations so that it is for specified taxes and not generally open? In that way, everyone will be happy, constitutional propriety will be fulfilled, and the Government will meet their commitment set out in the manifesto in respect of Calman. On that basis, I beg leave to withdraw my amendment.
“Aggregates levy
(1) In Part 4A of the 1998 Act (as inserted by section 28), after Chapter 6 (inserted by section 36C) insert—
“CHAPTER 7Aggregates Levy80N Aggregates Levy
(1) A levy charged on aggregate subjected to commercial exploitation is a devolved tax.
(2) In this section “aggregate” means (subject to subsections 4 and 5 below)—
(a) any rock, gravel or sand, together with whatever substances are for the time being incorporated in the rock, gravel or sand or naturally occur mixed with it, and(b) the spoil, waste, off-cuts and other by-products resulting from the application of any exempt process to any aggregate;but does not mean anything else resulting from the application of exempt process to any aggregate.(3) In this section any quantity of aggregate is, in relation to any occasion on which it is subjected to commercial exploitation, a quantity of taxable aggregate except to the extent that—
(a) it is exempt under subsections 4 and 5;(b) it has previously been used for construction purposes (whether before or after the commencement date);(c) it is, or derives from, any aggregate that has already been subjected to a charge to aggregates levy in the United Kingdom;(d) it is aggregate that on the commencement date is on a site other than—(i) its originating site, or(ii) a site that is required to be registered under the name of a person who is the operator, or one of the operators, of that originating site.(4) Aggregate is exempt under this section if—
(a) it consists wholly of aggregate won by being removed from the ground on the site of any building or proposed building in the course of excavations lawfully carried out—(i) in connection with the modification or erection of the building; and(ii) exclusively for the purpose of laying foundations or of laying any pipe or cable;(b) it consists wholly of aggregate won—(i) by being removed from the bed of any river, canal or watercourse (whether natural or artificial) or of any channel in or approach to any port or harbour (whether natural or artificial); and(ii) in the course of the carrying out of any dredging undertaken exclusively for the purpose of creating, restoring, improving or maintaining that river, canal, watercourse, channel or approach;(c) it consists wholly of aggregate won by being removed from the ground along the line or proposed line of any highway or proposed highway and in the course of excavations carried out—(i) for the purpose of improving or maintaining the highway or of constructing the proposed highway; and(ii) not for the purpose of extracting that aggregate;(d) it consists wholly of aggregate won by being removed from the ground along the line or proposed line of any railway, tramway or monorail or proposed railway, tramway or monorail and in the course of excavations carried out—(i) for the purpose of improving or maintaining the railway, tramway or monorail or of constructing the proposed railway, tramway or monorail; and(ii) not for the purpose of extracting that aggregate;(e) it consists wholly of the spoil, waste or other by-products, not including the overburden, resulting from the extraction or other separation from any quantity of aggregate of any china clay or ball clay; or(f) it consists wholly of the spoil from any process by which—(i) coal, lignite, slate or shale, or(ii) a substance listed in subsection 5(b) below,has been separated from other rock after being extracted or won with that other rock.(5) For the purposes of this Part a quantity of any aggregate shall be taken to be a quantity of aggregate that is exempt under this section if it consists wholly or mainly of any one or more of the following, or is part of anything so consisting, namely—
(a) coal, lignite, slate or shale;(b) the spoil or waste from, or other by-products of—(i) any industrial combustion process, or(ii) the smelting or refining of metal; (c) the drill-cuttings resulting from any operations carried out in accordance with a licence granted under the Petroleum Act 1998;(d) anything resulting from works carried out in exercise of powers which are required to be exercised in accordance with, or are conferred by, provision made by or under the New Roads and Street Works Act 1991; or(e) clay, soil or vegetable or other organic matter.(6) For the purposes of subsection (3)(c) aggregate subjected to exploitation in Scotland is aggregate that has already been subjected to a charge to aggregates levy if, and only if—
(a) there has been a previous occasion on which a charge to aggregates levy on that aggregate has arisen; and(b) at least some of the aggregates levy previously charged on that aggregate is either—(i) levy in respect of which there is or was no entitlement to a tax credit; or(ii) levy in respect of which any entitlement to a tax credit is or was an entitlement to a tax credit of an amount less than the amount of the levy charged on it.(7) For the purposes of subsection (5)(b) above, any credit the entitlement to which arises in a case which—
(a) falls within section 30(1)(c) or 30A of the Finance Act 2001, and(b) is prescribed for the purposes of this subsection,shall be disregarded.(8) In this section—
“coal” has the same meaning as in the Coal Industry Act 1994;
“highway” includes any road within the meaning of the Roads (Scotland) Act 1984;
“exempt process” means—
(a) the cutting of any rock to produce (stone with one or more flat surfaces);(b) any process by which a relevant substance is extracted or otherwise separated (whether as part of the process of winning it from any land or otherwise) from any aggregate;(c) any process for the production of lime or cement from limestone or from limestone and (anything else); and“relevant substance” means any of the following—
(a) anhydrite;(b) ball clay;(c) barytes;(d) china clay;(e) feldspar;(f) fireclay;(g) fluorspar;(h) fuller’s earth;(i) gems and semi-precious stones;(j) gypsum;(k) any metal or the ore of any metal;(l) muscovite;(m) perlite;(n) potash;(o) pumice;(p) rock phosphates;(q) sodium chloride;(r) talc; or(s) vermiculite.(9) The Treasury may by order made by statutory instrument—
(a) modify the list of relevant substances in subsection (8) above by adding any substance to that list or by removing any substance from it; and (b) make any such transitional provision in connection with the modification of that list under this subsection as they may think fit.(10) The Treasury shall not make an order under subsection (9) above by virtue of which any substance ceases to be a relevant substance unless a draft of the order has been laid before Parliament and approved by a resolution of the House of Commons.
(11) A statutory instrument containing an order under subsection (9) above that has not had to be approved in draft for the purposes of subsection (10) above shall be subject to annulment in pursuance of a resolution of the House of Commons.”
(2) Duty may not be charged in accordance with the provision inserted by this section if the exploitation occurs before the date appointed under section (Disapplication of United Kingdom Aggregates Levy)(4).”
Lord Forsyth of Drumlean
This feels like Groundhog Day.
I thought that the committee of the Scottish Parliament that looked at the latest Bill just before Christmas last year had wanted to include air passenger duty in it, but I am told that that is not the case and that the committee was prepared to wait. It is certainly not prepared to wait on the aggregates levy. As noble Lords will see, it takes three pages of legislation to provide for the power to obtain the revenue from the aggregates levy. Here, once again, we have a case of St Augustine: “We are in favour of this, but we don’t actually want to do it now”.
The argument being put against including this in the Bill is that it would be subject to legal challenge—the power might be put in the Bill but the result might be that no revenue for the Scottish Parliament arises from it. That is not an argument for not putting it in the Bill. Primary legislation is difficult to achieve, and it is even more difficult to achieve in a decent time in Westminster. I think that my noble friend should accept my amendment—which is probably technically deficient—and extend the range of tax powers available to the Scottish Parliament, if for no other reason than to mitigate the effects which we have talked about at length today of having a narrower income tax base. I beg to move.
Lord Foulkes of Cumnock
While the noble Lord, Lord Forsyth, has been talking, and now that he is talking about aggregates tax, I have been aggregating the time that we have taken to deal with half a dozen or so groups of amendments. I see that we have about twice as many groups still to deal with before we reach the target that the Government have set themselves. We have taken six and three-quarter hours to deal with these half a dozen or so groups of amendments, and at the rate we are going it will take until about 7 o’clock tomorrow morning to deal with the rest.
Although I am prepared to stay here, I think that it really is unfair on all the staff—on Hansard, on the catering staff, the doorkeepers, the civil servants and the clerks of course—who do such a wonderful job on our behalf. It is incumbent on the Minister and the noble Baroness the Whip to start thinking about how the Government will deal with this. We lost one whole day of our Committee stage because the Welfare Reform Bill took it up. We all sat round for a whole day but eventually the Government said, “We are not having it today. You can all go home”. That was a wasted day for many people. We are having a detailed debate on this Bill. I have not participated in much of it but I have been listening to all of it—and yes, as a noble Baroness says, I nodded off on one occasion as well.
It is incumbent on the Government to give an indication to the staff—to everyone around the House—of what will happen. How late will we go tonight and what is the target? They should also give us more time to deal properly with this very important constitutional Bill. It was not dealt with properly in the other place, but it is our responsibility to deal with it properly. There is plenty of time after Easter for Report. We could continue the Committee stage in the two days that are allocated for Report and deal with it properly then. I hope that the Government will give that serious consideration. Otherwise, we will not be treating dedicated staff as we should if we are to be a good employer.
Lord Sassoon
Right. I had quite forgotten that we are on the aggregates levy. Let me answer my noble friend’s points. Yes, the Calman commission recommended the devolution of the aggregates levy and, as my noble friend knows, the Government agree with that recommendation. We are committed to devolving the aggregates levy to the Scottish Parliament but, to confirm what he said, we believe that that can and should be done only once the complex legal challenges against it in the European and UK courts have been fully resolved. The Government were clear about their position in the Command Paper for the Scotland Bill, and we remain firmly committed to it.
The position is still moving on the court challenge. The European General Court delivered its judgment in the case of British Aggregates Association v the Commission on 7 March this year. The judgment does not conclusively resolve the legal challenges. Appeals can still be brought against the judgment to the European General Court. Once the action in the European General Court has concluded, action in the UK Court of Appeal will resume. As we have discussed at considerable length, the Bill enables the Government to devolve taxes in future, and it means that devolving the aggregates levy after full resolution of the legal challenges can be achieved quickly. I am happy to say that my noble friend’s very extensive amendment technically broadly works. He is too modest. There would be one or two things to look at, but that is not the issue.
To make sure that things continue and we do not lose momentum on this, as a practical and necessary step to prepare for devolving the levy the independent Office for Budget Responsibility will start to provide forecasts of Scottish aggregates levy receipts from April 2012. The Treasury will also notionally assign these forecast receipts to the Scottish budget. Together with the tax powers in the Scotland Bill, this will allow for the speedy devolution of the levy when the legal challenges have been fully concluded. At that time, the order can be drawn up to reflect the position post the completion of the challenges.
I hope I have made it clear that the Government’s desire to devolve the levy as soon as is feasible continues. It is not feasible to do it while the legal challenges are ongoing. The Bill gives adequate powers for that devolution in future. I thank my noble friend for putting forward a carefully thought through amendment, but I ask him to withdraw it.
Lord Forsyth of Drumlean
My Lords, I am very puzzled by this. The Minister says that the amendment is competent. The Minister says that it was included in Calman. The Minister says that the Bill is about implementing the Calman proposals. The levy is certainly subject to a legal challenge. He did not explain why the fact that it is subject to a legal challenge precludes accepting my amendment and putting it in the Bill, and making that a devolved tax for the Scottish Parliament.
Lord Sassoon
I tried to make it clear that while we could draw up—as he has had a shot at drawing up—a technical solution within the framework of the levy as it exists now, and put through something in the form that he has proposed or a government amendment to do it, until we know whether it is premised on a legally sound basis it would be a waste of time to do so. We need to have a firm legal basis on which the levy exists before we can be sure of the proper basis to devolve it to Scotland. It is as simple as that.
I am surprised that he expresses such puzzlement. As I said, in the mean time we are doing all the practical things we can to make sure that when we have the legal green light, the devolution powers can be progressed as speedily as is appropriate.
Lord Forsyth of Drumlean
I am still a bit puzzled. Perhaps I do not understand it. Are the Government still collecting this levy?
Lord Forsyth of Drumlean
An argument that says, “We cannot put it in the Bill because we are not sure about the legality but we are still taking in the money” is a bit thin. I can give way to my noble friend and he can explain why it is not at all thin—it seems pretty thin to me. If the Government think that the legal basis is uncertain, why are they collecting the cash and spending it? As we know, their spending is way beyond their income. It is a very curious argument that says, “We are still collecting the tax but we cannot put this in the Bill”—which is subject, by the way, to commencement provisions that give the Treasury pretty considerable powers as to when it is enacted. The legal position is going to be sorted out one way or the other. If it means a change, there are already powers in the Bill to enable the Government to deal with that. I am at a loss to understand the logic of the Minister’s position.
Lord Sassoon
Let me make one last attempt at trying to help my noble friend as to why particularly the legal challenge means that it would be foolish and unsafe to try to draft an appropriate devolution mechanism now. As he may know, a central aspect of the challenges has been allegations of tax discrimination across borders. We do not know where it will come out and what the constraints may be, but since we might be doing something where borders would be relevant, we need to understand the legal ruling before we can construct a robust, devolved approach to this. It would be a ridiculous waste of our time and would make no sense to put up something if we thought that it would be immediately knocked down and that we would have to rewrite it in a year’s time.
Lord Forsyth of Drumlean
I have to say to my noble friend that at 7 pm on a Thursday night, after six hours of this Bill, to use an argument about wasting time is grave to say the least. The whole process that we are going through is in order to work out an appropriate Bill in terms of the Calman recommendations. If he is saying that if we make aggregates tax a devolved tax, although it might change as a result of changes arising from the legal challenge, I can just about get there, but when he says that it is about cross-border issues, presumably that refers to such issues between countries in the European Union and not within countries in the European Union. If we are now starting to say that we cannot devolve measures because of cross-border issues within the United Kingdom, are we not ceding a very important principle? He surely is not talking about the Scottish border in this context.
Lord Sassoon
I simply do not know where the courts will come out, but there are some constraints. As regards some of the amendments that my noble friend did not speak to, alcohol duties are one area where we are constrained by Europe, which says that there should be a uniform rate nationally. Therefore, there are other areas, although my noble friend might not like it. Alcohol duty is one area where there are precisely those constraints.
This illustrates why I do not think that it would be productive—there is a challenge, which is still not resolved and final—to base new legislation on an insecure foundation. In the mean time, as I have explained, we are operating the levy on a shadow basis, with the help of the Office for Budget Responsibility, so that we know what is attributable to Scotland from April 2012.
Lord Forsyth of Drumlean
That is to concede the point. If my noble friend is saying that the legal challenge might result in the Scottish Parliament not being able to have a higher or lower duty, should there have to be a uniform duty throughout the United Kingdom because of EU rules, that is not an argument for allowing the Scottish Parliament to have the revenue that arises from the aggregates levy. It is not just about setting the rate; it is also about having the revenue and broadening the tax base.
Perhaps the noble Lord is right. Who knows what the EU is capable of? The fact that we may end up with a uniform application, as in the case of alcohol duty, is not in itself a reason for not providing for this power in the Bill. If my noble friend’s concern is that the nature or the application of the tax may vary as a result of the legal case, and if he says to me, “Withdraw your amendment and I will come forward with a government amendment that provides for the aggregate levy but gives us the flexibility”, and my goodness, this Bill is bristling with examples, “for the Treasury to provide for it in secondary legislation”, that would be a much more desirable position—I know my noble friend hates it when we go back to this—than the general power to invent new taxes that is being justified on the basis of the Government’s inability, which I do not understand, to include in the Bill provisions that would allow for the aggregates levy and for air passenger duty. Can he help me with that?
Lord Sassoon
No, my Lords, I am afraid that I will not be able to help my noble friend. There is one subsidiary point on which perhaps I can do so. To be clear, I have said that it is a case against the Commission. For the avoidance of doubt, it is not that the UK is continuing to collect this levy on some inappropriate basis; it is just that the Commission is facing a case that may mean that the whole basis on which the levy system operates may have to change. I am afraid that I cannot give him any comfort on that. We shall draft the provisions as and when we have a safe basis on which to bring them forward.
Lord Forsyth of Drumlean
When my noble friend says that we will draft them when there is a safe basis on which they can come forward, I hope that by the time this Bill is given Royal Assent there will not be an open-ended power for him to come along and, by order, invent taxes that have not been subject to proper scrutiny as this aggregates tax would be, if he were to accept the amendment, by the House of Commons using the established procedures that we have always had for the consideration of tax.
There is one other question I want to ask my noble friend. Given the very strong line that he has taken on this matter—that it would be impossible to do so because of the legal challenge—and on the previous matter, the development land tax, which we have been told that it is not possible to put into the Bill, can I assume that this is no part of the negotiations that are going on with the Scottish Parliament to get legislative consent? I hope that the Government are not saying one thing to this House and another thing privately. Can he confirm that we are not going to be faced with this being delivered as the result of some deal, because of course that could not be done given the very firm line that my noble friend has taken on the impossibility of including those taxes in the Bill?
Lord Sassoon
My noble friend may have misunderstood me because I am sure that it would not be out of mischief, but I have never said that any of this is impossible. This Parliament can do whatever it wants in this area, but I have explained the practical and other reasons why it would be inappropriate at this time. I certainly do not want him to go away with the suggestion that any of this is impossible. It would just be wrong in the case of both of these taxes to proceed at this time for the reasons that I have set out at greater length than I thought I would have to, but I am happy to have had this debate.
Lord Forsyth of Drumlean
I am sorry that my noble friend is getting bored with this, but he has not actually answered my question. Let me put it in another way. Is he saying that if this House were minded to see the inclusion in the Bill of both these taxes—let us stick to the one we are on at the moment, the aggregates tax, although the development land tax had the support of those on both Benches—that whatever the strength of the arguments that are put, or even if this House were perhaps to vote in that direction, although that does not look particularly likely, he would resist it, but that it could be conceded as part of a negotiation with the Scottish Parliament in order to get its legislative consent, which is not required by statute? If he is saying that, that gives us considerable cause for concern, because what that says—and my noble friend talks about wasting time—is that it does not really matter what we say or do, or what arguments we advance.
In the end, what goes into the legislation will be determined by a backroom deal between Ministers and the First Minister on the basis of a legislative consent Motion that, right at the beginning of our debate, my noble friend refused to say would allow the Bill to go forward if it was accepted. It is a very simple question: will the line that my noble friend has given be held in the negotiations with the Scottish Parliament? It is a relevant question, because the committee that has looked at this wants it included in the Bill.
Lord Sassoon
I am struggling to see where this is going. The Government have said all along that we intend to devolve the aggregates levy. I think there was a slip somewhere, and perhaps I misheard, but the aggregates levy and the APD are the two taxes that we are talking about, for which it is inappropriate to bring forward measures at the moment. On the aggregates levy, we have been completely clear all along, so there is no question of any negotiation on this.
Lord Forsyth of Drumlean
Right. Well, on the basis of that undertaking, I am happy to beg leave to withdraw my amendment.
“Allocation of public funds to Scotland
(1) The allocation of public funds to Scotland shall be based on a needs assessment, rather than the population basis of the Barnett formula.
(2) The Chancellor of the Exchequer shall, by order, establish a commission—
(a) to agree a methodology for assessing Scotland’s needs; and(b) periodically to review the allocation of public funds to Scotland in the light of its needs.(3) The first review by the commission must be completed no later than 1 April 2015.”
Lord Forsyth of Drumlean
My Lords, the noble Lord, Lord Barnett, left me a note saying that unfortunately he had been detained and would not be here to move his amendment, and asking me whether I might find the time to do so. As I have added my name to it, I will do so with pleasure. I know that the noble Lord was keen to discuss the issue in Committee.
We had a good preparatory discussion for the amendment when we heard from the Minister how any reduction in the tax base would be compensated for by an addition to the block grant. The fundamental flaw in the Bill is that it is presented as being about accountability, but the accountability is limited. This is partly because of the limited nature of the taxes being devolved and partly because of the compensation for changes in policy in the tax base, to which I have just referred. However, the accountability is limited mainly because the bulk of the funding in the block grant is still based on the world as it existed in the 1970s, as amended and altered by subsequent Governments, including those of which I was a member. I plead guilty to using some of the techniques to enhance the effects of the Barnett formula and to reduce the squeeze that otherwise would have occurred on Scotland’s budget.
A Scottish Parliament has to be accountable when it pursues its different policies, whether they are on health, free care for the elderly, free tuition fees, free bus travel, extra nursery care provision or free prescriptions on the NHS—all of which are no doubt popular. Indeed, I venture to suggest that one reason why Mr Salmond did so well in the elections was because he was able to make such promises. I am not sure he will be able to keep them, but he certainly benefits from the fact that Scotland is more generously funded relative to need than the rest of the United Kingdom. That is historically the position and I do not apologise for it. When I was in office I did everything that I could to keep it that way.
However, we are going to move to a Parliament which has its own tax-raising powers. It was interesting that at the start of our discussions people tried to maintain the idea that the tax-raising powers might be used to lower taxes. That finally fell over and the debate swung toward the consequences of higher taxes. One can imagine what the consequences would be of lowering taxes while providing additional services and being funded at a rate of 20 per cent more per head—perhaps a little less—as a result of the impact of the Bill and the 10p tax-raising power. Over time it would cause great resentment and great difficulty in other parts of the United Kingdom. As the noble Lord, Lord Browne, pointed out, we should always focus our attention on what the consequences are for the United Kingdom and the union as a whole.
The noble Lord, Lord Barnett, has a habit of landing me in it on this subject. He had several goes on the Floor of the House, as he did today on the car park—and if it is in order to give advice to Black Rod, I would urge him to give in gracefully, because the noble Lord is a terrier. He tried and tried to get the House to set up a special Select Committee to look at the Barnett formula. I served on that committee, along with my noble friend Lord Lang and a number of distinguished Members of this House. We laboured long and hard, took lots of evidence and were absolutely unanimous that the funding for Scotland needed to move to a system based on need. Various arguments have been put against that. The one put by the Government is perhaps the weakest—that the time is not right and that they are concentrating on reducing the deficit. Both of those reasons seem to be difficult to understand and illogical. Surely, the right time to address this is when you are seeking to set out hugely innovative constitutional change.
Lord O'Neill of Clackmannan
Will the noble Lord not concede that this is probably the wrong time to change the Barnett formula, given the failure of the nationalist Administration’s economic policy in Scotland, where unemployment is rising at a faster rate and the economy is growing even more slowly than in the rest of the United Kingdom? Sadly, we need the Barnett formula to keep the show going in Scotland. I admit that there are areas of expenditure that we may well dispute—I am not happy about the priorities of the nationalist Administration—but nevertheless, the money is required to try to keep our economy limping along at this very difficult time.
Lord Forsyth of Drumlean
The noble Lord may be surprised to hear that I agree with him. I am deeply concerned about what is going to happen to jobs and public services in Scotland as a result of the impact of the Bill. If he is saying that this is the wrong time to fiddle around with the Barnett formula, I would say that this is absolutely the wrong time to introduce tax-raising powers in Scotland that are limited in scope, with an Administration that appear to spend money without any idea of where the resources will come from. The Scottish budget is very stretched—the promises that have been made are on a very large scale and the revenue that can be raised from the income tax provisions is very limited. Despite that, the damage that will be done will be considerable.
Earlier in our proceedings, people said that I seemed to think that politicians were just going to keep putting up taxes, even though they have to get elected. However, it is not just about tax but about preserving our public services: our schools and so on. It is a fact that spending per head on health and education is very much higher in Scotland than in England and in Wales, but that spending has not produced the same levels of productivity. The noble Lord is absolutely right that despite all the bluster, the Brigadoon economics and the Braveheart talk, the nationalist Administration have singularly failed to deliver on any of the outputs that they promised. Among the real concerns are the rising levels of unemployment and youth unemployment. The noble Lord may be surprised that I agree with him on this. I personally would take this Bill, put it on the shelf and get on with deciding whether Scotland wishes to remain part of the United Kingdom—and then have a proper look at the consequences that follow from the Bill.
This Bill is from another time. Its genesis or midwife was an attempt by the unionist parties to avoid the nationalists getting a majority. It failed, and the world has moved on; the senior civil servant in the Scottish Office writes blog posts to his colleagues saying that it is lost in the mists of time and is irrelevant. No one who spent even a quarter of an hour listening to our proceedings this afternoon—whichever side of the argument they were on—could say that the Bill is not a huge constitutional change. It is taken for granted and people do not know what is happening. If we are going to go down this track—and I certainly would not want to—and if the idea is to make the Scottish Parliament accountable, the basis on which it is funded from Westminster should be one that is fair and is seen to be fair by the rest of the United Kingdom.
Lord Foulkes of Cumnock
My Lords, very briefly, I cannot support this amendment. It will not achieve what the noble Lord, Lord Forsyth, thinks it will in terms of fiscal responsibility. I understand why he is suggesting a change from the present arrangement to a needs-based arrangement. That is perfectly valid and he has argued the case very well. However, for as long as we still have mixed funding for the Scottish Parliament—powers to raise taxes and the block grant—there could always be a situation in which the Scottish Government hold the UK Government to ransom and say, “We are not going to raise more taxes. We want more money from the United Kingdom Parliament”.
That is why I think the noble Lord, Lord Forsyth, was coming round in his logic earlier, and will ultimately come round, to full fiscal responsibility. The Scottish Parliament should be given a basket of tax-raising powers, which is what I think Calman recommended, to raise money not just for part of its expenditure but for all of it. Until we get to the stage where the Scottish Government are responsible for making not just spending decisions but revenue-raising decisions, they will not have full fiscal responsibility. I know why the noble Lord is putting this forward but his amendment would still leave an Oliver Twist situation, whereby a First Minister such as the one we have now keeps pressing the UK Government for more and continues to blame them.
Lord Forsyth of Drumlean
Could the noble Lord just explain to me how that would work? What basket of taxes could meet the bill, given that there is a gap between the taxes that are raised and expenditure? How would that work?
Lord Foulkes of Cumnock
That is the conundrum that needs to be resolved, but it can be resolved by giving the Scottish Parliament a full range of tax-raising powers. I know that the argument is that Scotland does not have a big enough tax base to enable it to raise money to fund its domestic services. That cannot be the case if it has tax-raising powers, or you concede the argument that there is a major transfer of resources from England to Scotland to keep services going in Scotland. The First Minister of Scotland says that that is not the case. He says that Scotland is a wealthy country that can manage on its own. Therefore, you should take that as a challenge.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord. However, the First Minister also says that Scotland could join an “arc of prosperity” with Iceland, Ireland and the rest. What the First Minister says and what the facts are are not the same thing. There is a gap; if there was not, we would not be arguing about the nature of the Barnett formula. Of course we spend more per head and of course we do not raise more taxes per head. Therefore, by definition, there is a gap—that is the point. My worry is that the road we are going down will narrow the gap and we will end up with less money and higher taxes in Scotland. That is the challenge. I live in Scotland and I want to die in Scotland. I worry about how services will be funded if we go down this road.
Lord Foulkes of Cumnock
I hope the noble Lord will continue to live in Scotland for a long time and that his life will not end too soon. From what he said earlier, I gathered that he wanted, in his heart, to move towards full fiscal responsibility. He said that in an earlier intervention. How can he not see the point that I am making? I may not have the right solution, but does he not see my point in relation to the continuation of a dual function? If the Scottish Government have the power to raise money and can still get a substantial amount of their expenditure from the United Kingdom Government, the incentive will be not to raise taxes—we have seen that with plus or minus 3p in the pound—but to ask the UK Government for more. That is why mixed funding would create tremendous problems.
Lord Sassoon
My Lords, first, it is a pity that the noble Lord, Lord Barnett, has not been able to join us this evening to discuss his eponymous formula. Nevertheless, we have had an interesting debate. I am afraid that, in the words of the noble Lord, Lord O’Neill of Clackmannan, I am probably going to take the feeble-argument way out of this, although he has given it a degree of respectability. I fully share the concerns about the formula that have been expressed in this House and in another place, but I think that this is the wrong time and place to be dealing with it. Perhaps I may explain a little more fully why I say that.
What is the Bill about? It is about increasing the accountability of the Scottish Parliament to its people by devolving fiscal powers from Whitehall to Holyrood. In this debate we have heard a number of Peers say that they would like much more to be devolved. I suppose that at the extreme end the noble Lord, Lord Foulkes of Cumnock, my noble friend Lord Caithness and others have pointed out the limits to the amount of devolution of tax powers and accountability that can take place. Nevertheless, I still contend that an important and significant step in the right direction is contained in the Bill and we should not minimise that.
Future decisions taken by Scottish Ministers will affect the overall level of funding for Scotland’s public services as they decide whether to increase or decrease devolved taxes relative to the UK. That happens whether or not there are any changes to the Barnett formula in the future. I think it is quite appropriate to link considerations of the Barnett formula with what we are discussing in the Bill. On the other hand, I argue that it is not necessary to reform the Barnett formula for the Bill that we are discussing to have real impact. I would not go as far as saying that reforming the Barnett formula is an entirely separate issue but I do not think that it is necessary in order to let the Bill have full effect. Incidentally, the Calman commission remarked on the Barnett formula but it made no recommendations in relation to it.
Lord Forsyth of Drumlean
I have been listening quite carefully to my noble friend’s argument and I see the logic of where he is coming from. It is this wretched Augustinian argument—the time is not right. My noble friend may not want to say this but if he thinks that the Barnett formula is unfair and will need to be dealt with at some stage in the future, would it not be much harder to deal with it then? At the moment, if you dealt with Barnett you could phase in the reduction in the grant that would follow. In circumstances when the Scottish Parliament has the power to raise income tax to make up the gap, it would be politically very much more difficult to deal with Barnett because people would be able to translate the reduction in Barnett into huge and geared increases in income tax. I wonder whether my noble friend will think about that and indicate whether he thinks that that may be a reason why it is better to proceed with funding and tax-varying powers in parallel.
Lord Sassoon
My Lords, I do not know whether it was an Augustinian argument but I was going to start by saying that the pace is not right rather than that the time is not right. However, we might come on to the time as well. I appreciate that the two things are much of a muchness. Let me continue with the reasoning.
First, as my noble friend knows full well, the current formula is an administrative procedure. It does not appear in legislation so it is not itself something that requires to be dealt with in legislation. More importantly —something that has been alluded to by one or two noble Lords—we need to have in the centre of our thinking that it is not specific to Scotland; it is a mechanism for allocating funding across all four countries of the UK. It would not be appropriate to legislate to alter the formula—a formula that is not in legislation anyway. If we were to legislate for something else, we could not do it in isolation for Scotland.
To reiterate, the Government understand the concerns that have been expressed in both Houses about the devolved funding arrangements. I say that loud and clear, I hope, to my noble friend Lord Lyell in particular. He gave examples of how other countries do it and sought reassurance that we have the matter under consideration. I certainly believe that it is a matter that will not and should not go away. My noble friend Lord Maclennan of Rogart also stressed the importance of this. Unlike some other noble Lords, he made the point that this is a United Kingdom and four-country matter. I agree with the noble Lord, Lord O’Neill of Clackmannan, that while we recognise the difficulties, the Government’s position—Augustinian or otherwise—is that at this time the priority has to be to reduce the deficit. I hear my noble friend loud and clear, and he would not expect to hear anything else from me. Any change to the current system and to the formula must await the stabilisation of the public finances.
Let us remember that the Bill does nothing to rule out or rule in reform of the formula in future, so we are doing nothing through this Bill to make it any more difficult to do it. I understand the logic of much of what my noble friend says but, as he would expect, I conclude that the Barnett formula is not the purpose of this Bill. It would not be appropriate to legislate for it in this more targeted piece of legislation, so I ask my noble friend to withdraw the amendment in his name and that of the noble Lord, Lord Barnett.
Lord Sassoon
I am very glad that we have that clearly on the record. I did think at one point at the beginning of the remarks by the noble Lords, Lord O’Neill and Lord Foulkes, that I would be able to say that I agreed with everything they said. I agree with their conclusion that this amendment should be opposed or, I hope, withdrawn, but I certainly accept that we are probably not in full agreement.
While I am on my feet, it gives me the opportunity to say that the Calman report said that the Barnett formula should continue to be used as the basis for calculating the block grant so, for the avoidance of doubt, when I said there were no recommendations, there were no recommendations to deal with it along the lines proposed in the amendment. The report went on to say quite a lot of things because this was only recommendation 3.4, but perhaps I can end by asking my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
I am most grateful to my noble friend. The only sadness I have about this debate is that we did not have the noble Lord, Lord Barnett. We will clearly have to have another go at this when he can attend at a later stage in the Bill. My noble and learned friend Lord Wallace has lost his sense of humour—I was joking.
As I said, it is a shame that the noble Lord, Lord Barnett, was not here. We have had some interesting speeches. I have to say that I am not an authority on Calman. The report certainly says that, but I think it goes on to say that it should be reviewed. I think it was important to have this debate. I entirely accept that it does not have to be included in the Bill, but given that the Government are bringing forward this Bill, it was an opportunity to raise the important question of Barnett and the consequences of not addressing the issue now.
I thought that what my noble friend Lord Maclennan had to say was entirely sensible both because this is a United Kingdom issue, not a Scottish issue, and because there should be a commission. I think it was the noble Lord, Lord O’Neill—or was it someone else? I cannot remember—who said that there are endless commissions, that we had the Barnett commission that did not make much difference and that commissions come and go.
I think there is a misunderstanding. The Select Committee on Barnett recommended that a statutory commission along the lines of that in Australia should be set up with the job of working out the formula on a fair basis for the United Kingdom as a whole. I do not know, because he is not here, but I suspect that that is what the noble Lord, Lord Barnett, is referring to in his amendment. I agree with my noble friend Lord Maclennan that it would be sensible to get that work under way because the tax-raising powers are not going to happen until 2015.
I also agree with the noble Lord, Lord O’Neill, that this is probably not the moment to start unwinding the Barnett formula, but we would need to have a commission of that kind in order to move to a fairer system, and that work will take four or five years. The Select Committee of this House on the Barnett formula recommended that any changes, and they would be considerable, should be phased in over a very long period of 10 to 12 years. My anxiety is that as we move down this track and as it generates heat and anxiety in parts of the United Kingdom, it may be very much more difficult to do this in an orderly way that produces the minimum stress for the union and for our public services in Scotland. That is where I am coming from on this issue.
I have to say to my noble friend Lord Caithness, who seems to have joined the devo-max party of the noble Lord, Lord Foulkes, and wants to have more taxes, I have not seen his name on any of the amendments that have argued for an extension of the tax-raising powers of the Scottish Parliament: the aggregates levy, the air passenger duty and so on. Of course, this whole Bill as it is currently constituted in respect of the income tax powers is very narrow. It is only the product of 10p.
The noble Lord, Lord Foulkes, is trying to get me into his camp because I said that I was beginning to see the merits of the argument for fiscal autonomy. However, that was only in the context of what my noble friend was saying, which was that the Scottish Parliament will be compensated for any changes that are made in the tax base south of the border.
Lord Maxton
The noble Lord said “late lamented”—Wendy is still very much alive.
Lord Forsyth of Drumlean
She may still be alive but she is no longer leading the Labour Party in Scotland. I do not want to ruin what career she may have ahead of her, but in any discussions I had with her I found her to be exceptionally able and far-seeing, looking beyond the immediate prospect of events and what is in today’s newspapers.
I am not enthusiastic about this whole devo train that we have got on. I believed from the beginning that it would lead to the nationalists dominating the Parliament and that it could lead to the break-up of the United Kingdom. I am not particularly smart for thinking that. Enoch Powell was arguing that years ago. All I am saying is if we are going to go down this track, we should anticipate some of the problems and that Barnett is going to be one of them.
I sense that the House probably does not want to discuss this at any more length, so I beg leave to withdraw the amendment in my name and that of the noble Lord, Lord Barnett. I look forward to receiving some criticism by him for not making all the points that he would have made, and for not making them as eloquently as I am sure he would have done.
Lord Foulkes of Cumnock
Hours ago, when we started this Committee, we got into a terrible fankle over which amendments we were dealing with, the groupings and how one amendment related to another. As we go on through these amendments, that problem will manifest itself even more. There is a lot of overlap and interrelationship, and I am not sure of the groupings. That is probably my fault as well as other Members, as much as it is of the clerks or anyone else. Nor am I sure that the groupings are as sensible as they might be.
However, this group is fairly sensible. The confusion is not in terms of the grouping. The confusion, which is in here to some extent but outside to a greater extent, is when we talk about referenda. That is because we are talking about different referenda. I accept what my noble friend Lord Browne said about this earlier. He is absolutely right and probably we would get unanimity in this House. The crucial referenda is the yes/no on separation. That is absolutely essential and vital. We will discuss that later in Committee. We will all focus on that and will have a really important debate.
I know where I stand on that and I have put down a number of amendments. One amendment deals with a yes/no vote and then moves on—I say a month or so later but it might not need to be later—to looking at how we deal with the situation post that referendum, assuming that we have rejected separation, as I hope that we will. Rightly, there is discussion in advance of the referendum as to whether the parties—the unionists, the devolutionists and the federalists: I keep reminding the Liberal Democrats that they are federalists—all of us, should have a common understanding of how we move forward in relation to the situation post that major referendum. It does not have to be a totally agreed position, which might be difficult.
I was going to move this amendment without reservation until I heard my noble friend Lord Browne earlier. I know that he wonders sometimes whether I listen to him but I listen very carefully to him. I was going to argue that we had a two-question referendum in 1997. The second question was:
“I agree … OR … I do not agree that the Scottish Parliament should have tax varying powers”.
Some 63.5 per cent of the electorate agreed and 36.5 per cent disagreed. A very substantial number were in favour of a tax-varying power.
In his intervention earlier, my noble friend said that, as far as the Official Opposition is concerned, that gives us a mandate not just for the plus or minus 3 pence but a mandate effectively for any tax-raising powers for the Scottish Parliament. That was my understanding of what my noble friend Lord Browne said. If I am wrong, I am sure that he would intervene.
If that is the case, there is an argument that we do not need a further referendum on tax-raising powers. We have effectively the mandate with the second question of the 1997 referendum. That now appears to be the view of the Official Opposition. Before we come to whether this amendment is voted on, withdrawn or whatever, is that also the view of Her Majesty's coalition Government? Do they believe that the vote on the second question in the 1997 referendum gives a mandate for this Parliament to give, without a referendum, the Scottish Parliament any tax-raising powers—and I mean any powers, not just income tax? My belief that we needed another referendum was based on the fact that there was an implicit understanding that it was going to be plus or minus a percentage of income tax. That would be the limit of the tax powers that were going to be devolved. That was my understanding, but I would accept correction. If that is the mandate, I would welcome it.
I was going to quote at length from an interesting article in Scottish Affairs, written in the winter of 1998 by Charles Pattie, David Denver, James Mitchell and Hugh Bochel, but because of the hour I will shorten it. It is an analysis of the results of the 1997 Scottish referendum. I want only to quote one part, and this is really in tribute to the noble Lord, Lord Forsyth:
“In 1995, however, Labour came under serious attack on the issue from the Scottish Conservatives when Michael Forsyth became Scottish Secretary. Forsyth focused on the tax varying powers in Labour’s proposals, the ‘tartan tax’ as he called it. Labour struggled to find an effective response and there was a fear that New Labour’s carefully constructed image as a low tax party might be tarnished. In the face of considerable controversy within Scotland, therefore, the Labour leader, Tony Blair, announced in 1996 that a referendum would be held consisting of two questions, one on the principle of devolution and the other on tax varying powers”.
So we have the noble Lord, Lord Forsyth, to thank for the fact that our Prime Minister took what I think was the correct decision—under pressure, according to this article, from the Scottish Conservatives and particularly from Michael Forsyth, as he was then—to include the second question.
That second question having been included and having had such a substantial majority, my noble friend Lord Browne having given us an assurance that the next Labour Government will accept this as a mandate and the current Opposition accepting it as a mandate to introduce any taxation, the question remains: what is the position of Her Majesty’s Government? Assuming that it is the same position, I would argue that this Parliament can then legislate for what the noble Earl, Lord Caithness, and I agree is the best way forward, which is full fiscal responsibility. Some people call it full fiscal autonomy, but it is important to have the word “responsibility” in it. The noble Earl put it very well indeed when he said that it is the responsibility for raising money as well as for spending money.
Lord Forsyth of Drumlean
It may be that the lateness of the hour and the number of amendments we have dealt with have addled my brain, but I do not really understand what the noble Lord is arguing. I thought that this amendment was about providing for a referendum, but he appears to be saying that the power in the Bill which allows for the imposition of new taxes by order before both Houses should be used to deliver complete fiscal autonomy. Can that be true?
Lord Foulkes of Cumnock
I have been listening carefully to the debate, but my brain might be addled as well. When did we start? I believe it was at 3.30 this afternoon—I am sorry, we started at 12.30 pm, so we have been debating for eight and a half hours. Perhaps I did not explain myself properly. I said earlier that I would move this amendment, but that before we introduce full fiscal responsibility we need a referendum. That is because if we had a referendum for plus or minus 3 pence on income tax, this will go a great deal further than that and therefore we need a referendum to give the authority to introduce that extra tax-raising power. However, my noble friend Lord Browne said earlier that the referendum result in 1997 gives us the necessary mandate to introduce full fiscal responsibility. No doubt he will repeat that when he comes to speak. What I want to know is what the Government think about it.
When I talk about full fiscal responsibility, that is not what some people talk about as devo-max. There are two things. One is the fiscal devolution, the tax-raising powers. The other is the spending powers, or the powers over services being devolved. We have effectively gone far enough in relation to that. Some people would argue that devo-max should include devolution of welfare, pensions or other aspects that are currently part of the United Kingdom responsibility. I would counter and argue very strongly against that. Donald Dewar, my noble friend Lord Sewel and others worked very hard on this to make sure that we gave maximum devolution of functions. We did that. Where we did not do it was to give the responsibility for raising the money to pay for exercising those functions. That is what I am arguing today.
Lord Maclennan of Rogart
My Lords, I thought that I was going to agree with the noble Lord, Lord Sewel, but I find that I take a third and different position from those advocated by the two noble Lords who preceded me. Like the noble Lord, Lord Foulkes of Cumnock, I am a federalist and I do not believe that federalism is to be identified with the unitary model that the noble Lord, Lord Sewel, recommended. However, we should look at different levels of taxation and at giving greater fiscal responsibility for the matters that have been devolved.
I hope, however, that we will not confuse the issue at this stage, before the federal option has been properly explored and ways of dividing tax-raising powers between the different levels of government adequately set out, so that people not only in Scotland but in Wales, Northern Ireland and England can grasp what this is about. We should include in our explanation details of the provision for the redistribution of the wealth of the United Kingdom to its constituent parts—not only to the four nations but to some of the regions of England, which seem to be doing rather badly out of the Barnett formula.
The timing of the referendum seems inappropriate. It turns not only on whether the earlier referendum gave the mandate to Parliament that the noble Lord, Lord Foulkes, has come round to thinking that it did. It seems to me that at the time—and I am basing my remarks entirely on memory—we were thinking about varying the rates of income tax and not about extending taxation. I was interested to listen to what the noble Lord, Lord Browne of Ladyton, said on that, and I dare say that he has done more historical research on the point than I have. It will be interesting to hear from the Minister, who I am sure will answer these questions, whether the noble Lord, Lord Browne, was right, and I hope that we can accept that there are more than two ways of imparting the responsibility for fiscal tax-raising. There is also a federal way. We should explore that, because it operates more fairly throughout the United Kingdom and will take care of the other countries, whose needs also need to be thought of in this context.
Lord Forsyth of Drumlean
My Lords, given the journey that we have embarked on, I suspect that the noble Lord may get his wish if we do not see the fragmentation of the United Kingdom. I have an abiding image in my head of the noble Lord, Lord Foulkes, sitting at 3 am in his underpants responding to these cybernats.
Lord Foulkes of Cumnock
As my noble friend Lord Sewel said, that would not be a pretty sight, I can assure you. The cybernats deal with these things at 3 am; I can assure the noble Lord, Lord Forsyth, that I do not—I do it at very sensible hours in a careful, co-ordinated way. I urge him to remove that picture from his mind, otherwise it might corrupt him.
Lord Forsyth of Drumlean
I am doing my best. I am very worried, because I am also tempted to divide the Committee, if only for the pleasure of seeing the noble Lord vote against his own amendment. He started off making the case for his amendment and then seemed to argue that it was not appropriate.
The noble Lord, Lord Browne, was right to warn us that the world has moved on and that referenda are dangerous in the context of taking our eye away from the main issue, which is independence. All this chat about devo-max and additional powers puts us exactly where the separatists want us to be. The last thing they want us to discuss is what the consequences of independence will be for Scotland. My party leader contributed to that by suggesting that we could look at that after the referendum. Others have said the same, and I am sure that the right focus is to do that.
However, the Bill has been caught out by the passage of events and it does not seem unreasonable for the considerable tax powers to be subject to a referendum. I was therefore attracted to the noble Lord’s amendment. However, I do not for the life of me understand his argument that that question, given its limited scope, gives permission to go down the road of fiscal autonomy. At the very least I would like the opportunity to see some numbers. The speech of the noble Lord, Lord Sewel, was right on the button. It went to the heart of the difficulties being created by people embracing concepts and policies without looking at the numbers, the arithmetic and the fiscal and financial consequences, which are subject to assumptions.
The other day, someone in my party—an accomplished policy wonk—was challenged with the notion that the Scotland Bill and the move towards taxation would inevitably result in discussion of the Barnett formula. He said: “Oh, there is no way that people will ever take that money away from Scotland. We are safe”. We must not make these assumptions. These are deep waters. I am not with the speech of the noble Lord, Lord Foulkes, in support of his amendment, but I think that the amendment is reasonably sensible. We should be guided very much by the pertinent point made by the midwife of this whole exercise, who must feel like someone whose child has turned into a delinquent adolescent. We have to find a way of gripping the issue. Whether it is a federal or some other solution I know not, but I am sure that we should not distract attention from the referendum on the future of the union.
Lord Browne of Ladyton
My Lords, almost everyone who is in the House now will recollect that when I last spoke at any length in Committee it was on the group led by Amendment 53. As I had expected that that group would be much bigger and would include my noble friend’s amendments, I told the Committee that it was my intention to address those in anticipation. I had intended to restrict my remarks to referring your Lordships and my noble friend, in particular, to the speech I made earlier, but he has drawn so much support for his greater agenda from one part of that speech that I think I should pause for a few moments and remind him of what I said and the context in which I said it. It will then be open to him, of course, to draw any conclusions he chooses. I feel like a government Minister at this point, repeating words.
I remember the shock when I said, in making a broader argument about the political circumstances that informed the decision that we needed to make on ordering our priorities in terms of a referendum—no doubt the Official Report will correct me if I am wrong —that, as the Calman commission noted, a mandate had at least partially been granted by the 1997 referendum on Scottish devolution. It was a partial mandate, in one part of a broader argument.
I have probably gone further in explanation and beyond my prepared script than any Minister has in this House today. Perhaps I was unwise to do that. However, my noble friend is well able to read the rest of the context of that shortened quotation. If that gives him the comfort that he seeks—should there be any future Labour Government within a timescale that would allow him to resurrect his ambition for full fiscal autonomy—then I would be surprised.
“Scottish Consolidated Fund
(1) The 1998 Act is amended as follows.
(2) In section 64 (Scottish Consolidated Fund), for subsections (6) and (7) substitute—
“(6) Scottish Ministers may retain in the Scottish Consolidated Fund any amount not paid out under section 65, and may carry forward such surpluses from one financial year to the next.””
Lord Forsyth of Drumlean
My Lords, I am very disappointed that the noble Lord, Lord Foulkes, thinks that I have spent the past nine hours speaking but that my noble friends on the Front Bench have not listened to a word I have said.
Lord Foulkes of Cumnock
I am sure that they have been listening but they have not conceded anything. They have not moved to take account of the very sensible arguments that the noble Lord, Lord Forsyth, has brought forward from time to time.
Lord Forsyth of Drumlean
I was going to say that I was once given the advice, which I believe is part of the Whips’ Office mantra among all parties: namely, that whatever you do, you should not listen to the debate because it might make you inclined not to take the Whip. The great thing about this House is that that does not work in quite this way here, so one carries on in the hope that the arguments move Ministers a little. However, my complete failure to persuade the Minister that it is necessary to change speed limits to cover HGV vehicles as well as cars makes me think that perhaps one is trying to push water uphill. Nevertheless, I will have another go on this amendment, which I think is rather important.
The amendment would help Scottish Ministers in the Scottish Parliament to carry over expenditure which they have not spent in any financial year. I could keep going for about half an hour with stories of local authorities that rush out and buy street furniture in February and sleeping policemen in March. We are all familiar with that practice. It is an old saw. Anybody who has been a Member of Parliament can recount endless examples of constituents who have pointed out how ridiculous it is. I believe that this amendment would be welcomed by Ministers in the Scottish Parliament. The arguments are well understood so I will not dwell on them. I live in hope that my noble friend might be listening and might offer me some comfort that on this occasion he can see the sense in allowing surpluses to be carried forward from one financial year to the next. That seems to me to encourage good planning, good use of resources and proper stewardship of public money. I beg to move.
Lord Sassoon
As I say, we might get through this one tonight. I well understand what my noble friend wants to achieve with this amendment. There are two aspects to this question: first, whether the amendment would achieve what he wants it to achieve; and, secondly, whether it would be a good thing to achieve it. If the intention is to allow the Scottish Government to carry forward unspent funds and spend them in the next year, this is not the mechanism with which to do it. The amendment would accumulate funds in the Scottish Consolidated Fund but would not permit the expenditure of those funds since they are controlled by departmental expenditure limits which would remain controlled as they are now. Therefore, the amendment would not achieve that objective. Furthermore, it would deprive the Exchequer of revenue. The direct cost to the Exchequer of this proposal is around £100 million per annum. If the principle was extended to the other devolved Administrations, it would cost a lot more.
I shall not debate the effect of the amendment further, unless my noble friend would like me to. However, I suggest that, whatever the merits of the case, this amendment would not achieve them because it does not get round the expenditure controls which are agreed on a departmental basis. It would merely lock up funds and worsen the borrowing and fiscal position of the UK, which I know my noble friend thinks we are probably too lax about already. Therefore, I ask him to withdraw the amendment.
Lord Forsyth of Drumlean
My Lords, I am perfectly content to accept that the amendment may not have been perfectly drafted, but I am not content with that response, because I was clearly advancing the principle that the Scottish Parliament should be able to carry forward surpluses. If my noble friend can perhaps deal with the issue of whether it is able to do that, and whether he favours it in principle, I should be very grateful.
Lord Sassoon
My Lords, we need to make sure that UK expenditure, including Scottish expenditure, continues to be controlled in a way that imposes appropriate disciplines. The purpose of the Bill is of course to give the Scottish Government more responsibility for a proportion of their tax-raising powers, and that is linked to the expenditure. However, the expenditure having been agreed, it is appropriate that money from taxation should continue to flow as it does now into the Consolidated Fund, subject to the current regime under the Scotland Act 1998, which permits the Treasury, after consultation with Scottish Ministers, to designate receipts that go to the Consolidated Fund.
The devolved Administration in Scotland is currently required to surrender receipts from fines, forfeitures, fixed penalties, dividends on public dividend capital and most interest collected by Scottish Ministers. So there is currently a provision to recognise the flow of funds between Scotland and the UK Consolidated Fund. At the moment, the vast majority of the income in question is derived from fines and fixed penalties, which the Office for National Statistics defines as analogous to taxes. That arrangement is consistent with the Government’s view that taxes that are not devolved should be collected centrally and then redistributed across the UK. We continue to believe that, with the exception of what is explicitly devolved, the revenue should flow into the Consolidated Fund and that expenditure controls should otherwise continue to be exercised on the current basis.
There are much wider questions to be asked about end-year flexibility in individual departmental expenditure in the rest of the UK, and there is certainly a debate to be had—it is well outside the scope of the Bill—on the appropriateness for all government departments across the UK to carry forward expenditure from one year to another. The Treasury rules on this have changed over the years. I cannot remember in which year it was, but health expenditure got out of hand in the latter stages of the previous Government. I cannot remember if it was when the noble Lord, Lord Browne, was Chief Secretary. The noble Lord is indicating that it was, so he will know very well the difficulties of any regime under which expenditure is carried forward.
I do not want to be dismissive of my noble friend’s point, because there is a real issue here.
Lord Forsyth of Drumlean
Again, I struggle to see the logic of the Government’s position. Throughout the course of today, we have heard how this is about increasing accountability and ensuring that the Scottish Government raise more of the resources that they need for the financial commitments they make.
I find it odd to compare the position of the Scottish Government after the Bill is fully implemented with a government department. We are not talking about a government department, although the Treasury appears to be treating them as if they were. If the Scottish Government decide to increase income tax by 5 per cent to fulfil some commitment to increase nursery education, or whatever, and if at the end of the financial year they find that they have been able to implement that policy in an efficient and effective way, I do not see why the Treasury should be able to claw back some of that money and why they should not be able to carry it forward to use in subsequent years. Why does the Treasury need to keep control of that matter? It already has control over the general macroeconomic position. It is controlling the borrowing. I do not see the issue. I can see how the high priests in the Treasury have brought down their tablets of stone and said, “We have always done it this way. Therefore we have to do that”, but it is the Minister and his colleagues who are proposing that revolutionary change to the financing of the Scottish Parliament.
My noble friend is absolutely right: the Treasury has thought about this and resisted it for years. That is why every year we see money being squandered and wasted at the end of the financial year to spend the budget because it gets clawed back otherwise. I fully accept that my amendment may not be the best way to achieve the right result, but I ask my noble friend to consider bringing forward his own amendment, which would be technically effective and allow for carryover from one financial year to another. I do not really understand why that should be a problem, given the model and how he has described the responsibilities of the Scottish Parliament.
There is a separate issue, which relates to revenues which go into the Consolidated Fund in Scotland and the issue of assigned revenues for particular things such as fines. It is too late to start a debate on that, but my noble friend has given me some ideas for later stages of the Bill. It does not seem such a foolish idea to me, if the purpose of the exercise is to make the Scottish Parliament more accountable for its actions by making more of its revenue arise from its policies in Scotland, to assign some of those revenues and reduce the block grant accordingly.
I can see that there might be difficulties. It might encourage people to impose fines more enthusiastically than would otherwise be the case, but in terms of the general philosophy—I am trying to tune into the Government's approach to devolution—it seems a bit of a contradiction that my noble friend is so resistant to provision for carryover. Entirely accepting that my amendment may not be well drafted, is my noble friend prepared to bring forward his own amendment allowing for some carryover by the Scottish Government if they wish it? That would encourage proper fiscal behaviour, which I should have thought that the Treasury would welcome.
Of course, what the Treasury cannot bear is losing control. You can see that throughout the Bill. The rhetoric is all about how we are making them accountable, but everywhere we read, “You cannot do this until the Treasury has agreed this, that and the other”. I appreciate that when he goes back to his department, my noble friend will be surrounded by the high priests of the orthodoxy of the Treasury telling him that this could not happen, but this is a great opportunity to set a new style of government in Scotland, and I should have thought that carryover would be widely welcomed. This practice certainly leads to the most common complaint made about all public bodies, not just in Scotland but throughout the United Kingdom, so perhaps I could have one more go at asking my noble friend whether he will go away and think about this. If nothing else, it would be an amusing discussion for him to have back in his department.
Lord Sassoon
As I have already explained to my noble friend, the Treasury—we have one former Chief Secretary here—has looked at and experimented with giving flexibility to departments and devolved Administrations, so it is a topic that comes and goes and will continue to be live. However, I cannot give my noble friend any particular cause for hope that some new orthodoxy will be handed down in relation to this Bill. Even if it were, as I said, I do not think that the mechanism that he suggests of tying up cash in a Scottish Consolidated Fund is the right one. It is a broader question about the flexibility that the Treasury allows departments. The Treasury is not closed in its thinking, because it has allowed carry-forwards on different conditions in the past and will continue to think about that.
Lord Forsyth of Drumlean
I shall not pursue this matter ad nauseam but I have to say to my noble friend, very politely, that Ministers are there to instruct their departments, not to reflect what their departments think and say. If my noble friend thinks that carryover for the Scottish Parliament is a bad idea, that is fair enough, but one would like to know why it is a bad idea and how it does not fit into the Government’s overall view of their approach to devolution. We have heard the argument that the Treasury has been innovative and has allowed this and that, but this Bill is supposed to be about freeing people from those constraints and making them accountable to their voters. I am a bit disappointed that my noble friend is simply telling me what the Treasury thinks. I want him to go back and change the thinking in the Treasury in order to ensure that I, as a taxpayer living in Scotland, now and in the future get better value from my money which is spent by the Scottish Parliament.
I can see that if I press on with this, my noble friend will just get up and say, “As I have already told you”. Therefore, if I may, I shall return to this at a later stage with an amendment that is more carefully drafted. I beg leave to withdraw the amendment.
Lord Forsyth of Drumlean
My Lords, I have considerable sympathy for this amendment. When I was in the Scottish Office, I was not exactly remiss in trying to push forward my agenda. I suspect that most of the civil servants did not fully share that agenda, but in all the time I was there I was hugely impressed by the professionalism that was shown.
It is a pity that the noble Lord, Lord Robertson, is not with us this evening. He once complained about me for politicising the Civil Service because I had issued a press release that contained the phrase “tartan tax”. When the press release was done—and it was drafted by an official, the head of the communications department, Liz Drummond—and it came to me, I said, “We cannot say ‘tartan tax’ in an official press release”. She said, “No, it is fine”. I asked her to check with the Permanent Secretary, who thought it was fine. The press release went out. George Robertson as he then was complained to the Cabinet Secretary, now the noble Lord, Lord Butler, and a Member of this House. The Cabinet Secretary came to the conclusion that it was political and should not have been put in the press release, and I was given a wigging.
The conventions then were that if the Cabinet Secretary or the Permanent Secretary took the view that something was political and not ministerial, you obeyed that view. That is very precious. I have to say that under Labour the information departments were a bit politicised. In the end that was very damaging to government. When I was in the Scottish Office, if the Government said something, the Scottish media—who were not my biggest fan club, I have to say—would believe it if it came from the Scottish information office, but if it came from me they thought that might have some gloss, spin or angle on it, or that some kind of plot was afoot.
The moment you allow that line to be crossed, which appears to be happening in the Scottish Government, where the Civil Service is not seen to be, like Caesar’s wife, beyond reproach and impartial, ultimately that is very damaging to the process of government. Although it may be attractive in the short term for Mr Salmond and his colleagues to use the Civil Service in this way, in the end it will damage them. The best civil servants are those who turn up at meetings and say, “You can’t do this for these reasons”. They will argue the case, accept a robust argument and give good, impartial advice.
I am horrified by some of these stories, although my experience of the Scottish press is that you cannot always take as gospel everything that you read. However, there certainly have been enough examples. The blog which the Permanent Secretary has been running in the Scotland Office is truly extraordinary. One of his blogs advised his civil servants to see a play about an English army occupation in medieval Scotland, which he said speaks to us of our present condition. I do not know what is going on inside his department. Nothing about the condition in Scotland today is equivalent to that. That the Permanent Secretary should be doing that is, as I have said, quite extraordinary and a world apart from the Civil Service as I remember it.
It is a very sad thing that the Prime Minister has allowed the head of the Civil Service to be separated from the role of Cabinet Secretary. Having a strong head of the Civil Service as Cabinet Secretary whose job it is to maintain the integrity of the Civil Service system and to resist the inevitable pressures that come from Ministers to push the machine to the limits of what is appropriate, given their political agenda, is an important part of our system and one that is clearly being undermined.
As we have seen through the First Minister’s conduct towards the judges, he has little respect for conventions. If any of my Ministers had attacked a judge in public—my goodness me, I am sorry that the noble and learned Lord, Lord McCluskey, is not in his place but he gave me plenty of cause to respond at times—we took the view that you do not attack judges and you certainly do not attack them in very strident terms, as the First Minister did. Something is going very wrong with the guidance that has been given to Ministers on how they should conduct themselves in office and the guidance that has been given to senior civil servants. That is important.
Whether we end up with an independent Scotland or not, an independent Scotland should maintain that separation. It is absolutely vital to the good governance of Scotland and to the operation of our democratic system. I think that—I nearly said my noble friend—the noble Lord, Lord Foulkes, in moving this amendment is drawing attention to something very important. I hope that my noble friend will consider if not adopting this amendment then putting some provisions in the Bill, which after all deals with the powers and responsibilities of the Scottish Parliament, to enable some kind of redress if what we have seen happening in Scotland continues to happen and is not put back on the straight and narrow to ensure that the conduct of the Civil Service is appropriate to its role.
Lord Browne of Ladyton
My Lords, I did not expect to be on my feet at 10 o’clock at night contributing to the debate on this amendment. The issue that has raised its head in our discussions in this Committee over the course of the day is the apparent failure to organise its affairs in a way that is at least predictable if nothing else. I will not report all the conversations that I have had because apparently it would be a breach of the protocol of the usual channels. I am not part of the usual channels, although I have been dragged into them repeatedly.
I have tried to get a predictable order into the way in which these matters are dealt with so that people could have that communicated to them. Over the course of the day—as, indeed, over the course of this Committee—I have had clear understandings that matters would be dealt with in a particular way only for them to be changed, sometimes within minutes, sometimes within hours. There was a flurry of activity just before 10 o’clock, which was far too little too late, in an endeavour to manage the timing of affairs in such a way that would be respectful not only to the contributions that needed to be made but to those who serve and support this House and your Lordships and that would allow them to make sense of the way in which this work is being done.
I have now given up, by and large, trying to reach any kind of agreement on how matters can be dealt with, and I am extremely disappointed that my best endeavours have not been able to introduce some sort of sense into the proceedings. It was my experience in another place that if there were agreements and people stuck to them, and they were communicated throughout the House, then, by and large, we could control the business. I am defeated by the way in which business is organised in this House. I have tried to achieve that repeatedly and it has been a great disappointment to me.
Turning quickly to the amendment because of the time—and, because of the rules of the House, I understand that this time of itself generates another momentum in this House that is unwelcome—I am grateful to my noble friend Lord Forsyth for his comments and for the amendment.
Lord Browne of Ladyton
I am sorry; it is. I have been here too long now; I am too tired and that is it. It is an indication of where we all are. It is probably why we should not debate matters as important as this after the hours we have been on our feet, deprived of food, in here.
In any event, my noble friend has done us a favour: he has exposed an issue that is of importance to the people of Scotland. With all due respect, it is important not because it is an issue of controversy—many issues of controversy are not important—but because it is important to the people of Scotland. It is important for this reason: good governance in our constitution depends on the impartiality of the Civil Service. Those who have had the privilege and experience of serving in the Executive know—we all know—that the Civil Service is there to serve the Government.
Of course, as the noble Lord, Lord Forsyth, identifies, on some occasions that leads to accusations of politicisation. That is inevitable and I can think of many such accusations during the time when we were last in government. They were always rebuffed and arguments were always made that the Civil Service was simply doing its job. However, there was always a sense that when these issues got to a certain pitch, the Civil Service itself ensured continued impartiality. The nature of the Civil Service’s relationship to the constitution requires, in a sense, that the service polices itself. A number of distinguished former civil servants, including former Cabinet Secretaries, are Members of your Lordships’ House. It is a great pity that none of them is here to contribute to this debate and to explain to those of us who have not been civil servants how these issues ought to be dealt with in the Civil Service codes; and whether the experience in Scotland, and the apparent failure of the Civil Service to be able to respond to these concerns in a way that reassures people that this impartiality is being protected, has been run properly or not.
Lord Forsyth of Drumlean
I agree with the noble Lord that it would have been marvellous to have contributions from the noble Lords, Lord Butler and Lord Armstrong, but I should think they are probably making their cocoa and going to bed. The reason that we are not able to devote attention to these things is because we seem to be engaged in this sort of endurance exercise. I must say that carrying out this business, at this time of night, in this way, is the most persuasive argument I have heard for devolution since we started discussing the Bill.
Lord Browne of Belmont
I have no idea where distinguished Members of this House might be at this time of night—but, certainly, those who have sense are not here. My point is that this matter needs to be dealt with within the existing structures, in which we have had confidence for many years and which have been proof to these sorts of challenges in the past. Consequently—and I do not think that on this occasion my noble friend Lord Foulkes will be disappointed in me—I cannot support his amendment. However, the nature of the short debate that we have had has revealed the need for some broader discussion than we get in some newspapers in Scotland and some reassurance from the Civil Service itself that it will be able robustly to address these issues, or at least to explain in a persuasive way that the impartiality of the Civil Service has not been undermined.
Finally, I remind my noble friend Lord Foulkes of Cumnock of the debate on his Amendment 51, which sought to amend Clause 27 by constraining discussions between representatives of the devolved Administration —the Scottish Parliament and Scottish Government—and foreign Governments. He was, on that occasion, persuaded that the strictures that he was seeking to impose on the representatives of the Scottish Government could not have been policed and would not have been realistic. I suspect that if we had time to go over the criticisms of his current amendment, he would have come to that conclusion again. I just remind him of how he was persuaded by my noble and learned friend Lord Boyd on that occasion and trust he will get back into that state of mind when it comes to responding to this short debate.
Lord Foulkes of Cumnock
My Lords, I am grateful to everyone who has participated in this very good debate. It underlines what a number of us have said increasingly, as time goes on: it is a pity that we are debating things of such importance so late on a Thursday night. If we had had it at some other, more appropriate time people such as former heads of the Civil Service could have participated and advised us.
Lord Forsyth of Drumlean
If the noble Lord does not divide the Committee, he could put an amendment down and we could talk about it again at a decent hour at a later stage of considering the Bill.
Lord Foulkes of Cumnock
My Lords, what a very helpful suggestion indeed. I will immediately investigate it. I agree with the noble Lord, Lord Forsyth, absolutely: when I was a Minister in both DfID and the Scotland Office, he will not be surprised that from time to time my civil servants came to me and said, “Minister, I think you are being a little political in what you are suggesting here. I cannot put out a statement on your behalf saying this. You will have to get your party to put it out”. They are absolutely right to do that and we all respected it. That is why it is deeply disappointing that that is not what seems to be happening in the Scottish Government.
I say to my noble friend Lord O’Neill that I did not want to hang civil servants out to dry. In fact, both of the civil servants who I mentioned had really hung themselves out to dry in what they said and put on record. Although I do not normally quote the Daily Mail, the Telegraph and the Daily Express—I take everything I read in those newspapers with a pinch of salt—they were quoting directly from some of the things that Sir Peter Housden had said and put into his blog, so it was something that you could believe.
I take again the advice of my noble friend Lord Browne of Ladyton in relation to this, as I did with my noble and learned friend Lord Boyd on a previous amendment. The wording of the amendment is defective, as the Minister pointed out.
“Imposition of surcharges
The Secretary of State shall, by statutory instrument, make regulations requiring any Scottish Minister or member of the Scottish Parliament to pay a surcharge in the event of that person spending or causing to be spent public funds in excess of the amount that person is entitled to spend or cause to be spent by statute.”
Lord Forsyth of Drumlean
My Lords, some months ago I tabled Amendment 74, which would provide for some kind of sanction should Ministers in the Scottish Parliament act in a manner that is ultra vires. I was concerned that, following the considerable election victory by Mr Alex Salmond, there seemed to be something in the rhetoric to suggest that, because he had won an election, he had a mandate to do what he liked in the context of, for example, holding a referendum; and that if a referendum on independence was not within the powers of the Scottish Parliament, he had a mandate from the Scottish people. As I have reported before in this House, I understand that it was suggested to my right honourable friend the Chancellor of the Exchequer that if a referendum was properly conducted and held under the legislative provisions of Westminster, the First Minister would boycott it and instruct his officials to do so accordingly.
This seemed to highlight the fact that checks and balances on the behaviour of Ministers and Members of the Scottish Parliament might be lacking. Certainly, I know that the former Prime Minister Mr Tony Blair got into trouble for comparing the Scottish Parliament to local government. However, as Shirley Porter discovered to her considerable discomfort in Westminster, very serious sanctions apply in local government if elected members operate beyond their powers. I have tabled this amendment to tease out whether Ministers think that some kind of sanction or control would be appropriate.
I am sure that that applies to civil servants who are accounting officers and can be held to account by the Public Accounts Committee. It could be said that this does not apply to Ministers of the Crown, but there are sanctions that can be applied to them. I think we have lost the noble Lord, Lord Sewel. I may be mistaken but I do not think that the original Scotland Act provides for any sanction. I would be most grateful if my noble and learned friend could point me in the direction of some sanction, if indeed there is one.
This measure is not a means of achieving political control: rather, it follows on from the debate that we have just had. It is meant to ensure that what have been long-standing and well regarded conventions are accepted and operated, and that there is a sanction if that is not the case. I beg to move.
Lord Browne of Ladyton
My Lords, initially I had no sympathy at all with this amendment. I think that is a consequence of political conditioning because I am old enough to be of that generation in politics for whom the imposition of surcharges has a certain resonance that makes one react against them. I do not intend to go into all the reasons for that but those who are old enough to remember surcharges, or the threat of surcharges in the politics of Scotland, particularly in local government at one stage, may well remember why that is the case.
Secondly, I instinctively believe that the combination of audit and a PAC according to the Westminster model of government is the appropriate way to deal with these issues. Interestingly, today the Public Accounts Committee, under the leadership of Margaret Hodge, appeared to challenge elements of parliamentary accountability and called for powers to be developed that reflected the changed way in which we deliver services. Margaret Hodge made a very interesting speech today about that issue, which arose out of the controversy associated with the evidence given by civil servants in HMRC about tax deals.
For those two reasons I was instinctively opposed to this amendment because I think we have a very valued and flexible constitution in this country that can adjust to circumstances. Indeed, I have faith that the Auditor-General in Scotland and Scotland’s own accounts committee should be able to handle these issues, and that the appropriate sanction will be available. The appropriate sanction is the exposure, principally to the electorate, of what those in charge of public spending do with that spending. That is the traditional method by which we redress these issues.
I am told by my noble and learned friend that there may be ways of imposing financial penalties on members of the Executive who behave in certain ways, but I do not know the detail of that and I do not wish to speculate on it at the Dispatch Box. I listened to the noble Lord argue for his amendment in a measured way, anticipating that we would probably be able to resolve the example he gave of an improper use of funding for a matter that was outwith the vires of the Scottish Government. It is almost certain that we will find a way of transferring the power—even if temporarily—to the Scottish Government to run the referendum. I would like them to do that more quickly than they plan to do, but I am happy to respect their electoral mandate to administer and run that referendum, provided it is run in an impartial and fair way. I do not think, therefore, that the concern that immediately generated the amendment is likely to persist.
To the extent that the noble Lord raises an issue that will continue beyond devolution in Scotland, this is a matter to which I would like to hear the Minister’s response. Whether I veer towards support for some form of statutory regulation of behaviour, with consequences in the longer term, will be a function not just of the reasonableness of the noble Lord’s argument for the amendment but the response that I hear from the noble and learned Lord.
Lord Wallace of Tankerness
My Lords, I listened with interest to the contributions of my noble friend Lord Forsyth and the noble Lord, Lord Browne. We believe that the amendment is unnecessary because there is already a comprehensive code of legislation that makes detailed provision for the Scottish public finance regime. Safeguards and scrutiny are built into that legislation without the need for further provision to engage the Secretary of State, as proposed in my noble friend’s amendment.
Before I outline the relevant legislation, it is worth noting that, as a general principle—I think there is consensus on this—public expenditure must be authorised by statute or be reasonably incidental to that authorised by statute. This principle has been recognised and applied by the courts over many years. As the noble Lord, Lord Browne, said, the Westminster audit and Public Accounts Committee system had functioned well in keeping the Government up to the mark on their expenditure.
The Scottish Government and Parliament are creatures of statute, and expenditure out of the Scottish Consolidated Fund is regulated by the financial provisions in Part 3 of the Scotland Act 1998. This includes Section 65 of that Act, which provides that payments from the Scottish Consolidated Fund must be for the purposes of meeting expenditure of the Scottish Administration—that is, lawful expenditure of the Scottish Administration—or meeting expenditure payable under any enactment. Part 3 of the Scotland Act also paved the way for the more detailed public finance legislation set out in the Public Finance and Accountability (Scotland) Act 2000.
Section 1(1) of the 2000 Act provides that the use of resources by the Scottish Administration and other public bodies or officeholders whose expenditure is payable out of the Scottish Consolidated Fund for any purpose in any financial year must be authorised for that year by the Budget Act and not exceed any amount so authorised in relation to that purpose. This means that any use of resources by the Scottish Government must be for lawful purposes and also have its basis in and be authorised by the Budget Acts that are passed by the Scottish Parliament annually, much in the same way as Finance Acts operate here at Westminster.
In addition, Section 5 of the 2000 Act provides that sums may be paid out of the Scottish Consolidated Fund only in accordance with a credit granted by the Auditor-General for Scotland, and the Auditor-General must not grant such a credit if the proposed payment would not comply with Section 65(1) and (2) of the Scotland Act—that is, if the proposed payment is not for the purposes of meeting the expenditure of the Scottish Administration or meeting expenditure payable under any enactment.
Part 2 of the 2000 Act goes on to make detailed provision in relation to accountability and audit, and gives the Auditor-General for Scotland key functions in relation to auditing the accounts of Scottish public bodies, including directorates of the Scottish Government, and examining the economy, efficiency and effectiveness of these public bodies. Reports produced by the Auditor-General for Scotland in pursuance of these functions are laid before the Scottish Parliament and considered by its Public Audit Committee. The Auditor-General for Scotland is assisted and supported by Audit Scotland in the exercise of his functions in this regard.
I have given that brief description to illustrate the existing comprehensive statutory framework that is in place. The Scotland Act 1998 laid the foundations for that framework and anticipated that the Scottish Parliament would flesh out further detail in legislation, which it subsequently did in what became the 2000 Act. It would be inconsistent with the current scheme of devolution for the Secretary of State to be given a separate regulation-making power along the lines suggested.
My noble friend raised the issue of surcharging, which was also referred to by the noble Lord, Lord Browne. It is true that a system of surcharging was in place in local government regulation until the early years of this century. In Scotland, it was repealed by the Ethical Standards in Public Life etc. (Scotland) Act 2000. It was subsequently repealed in England following criticism in the Nolan committee's report on standards of conduct in local government. Although in theory it was intended to be a means of restitution, it did not achieve that purpose in practice and there were great difficulties in calculating the relevant sums. Therefore I do not believe that it would be an appropriate mechanism to graft on to the robust legislative code that is in place for checking spending by Scottish Ministers.
Both my noble friend and the noble Lord, Lord Browne, mentioned the issue of the referendum. The purpose of the Government’s offer under Section 30 orders is to ensure that a referendum can proceed on a proper legal basis and that the power for the work that needs to be undertaken by the Scottish Government in connection with a referendum would also be on such a basis.
I ask my noble friend to withdraw the amendment before I lose my voice.
Lord Forsyth of Drumlean
My noble and learned friend is losing his voice; Members of the House are losing their stamina; we are dwindling.
Lord Forsyth of Drumlean
Indeed, but I think it might be helpful if my noble and learned friend would indicate how much longer he proposes to go on with this, because the utility of the debate seems somewhat limited as we lose people one by one.
That was a very helpful explanation. It shows how out of date I am that I had not realised that the local government surcharge provisions had been withdrawn. I accept his point. If the Whip is suggesting that we adjourn shortly, I do not wish to interrupt that conversation.
I have one question for my noble and learned friend, which relates to the point on the referendum. I realise that that is a sensitive subject. If, for the sake of argument, the First Minister had decided to go ahead with the referendum without having the relevant legal powers and had spent £10 million on it, what sanction would be applied, and by what mechanism? In other words, can my noble and learned friend translate what he has just read out into what it would mean in practical terms?
Lord Wallace of Tankerness
My Lords, my noble friend indicated that this is sensitive ground. If he cares to read the lecture that I delivered at Glasgow University on 23 January, he will note what I said about the importance of the rule of law and Governments operating within it. Ultimately, if Governments choose to step outside the rule of law in a significant way, as the late Lord Denning said, no matter how high you are, the law is still above you. There would be a question over whether the expenditure would ever be made. Even at Westminster, there have been cases where action has been taken. If my memory serves me correctly, in the Pergau dam case a challenge to expenditure was brought in the courts and a finding made that that expenditure was not justified. I am not aware that any recovery was made from the Ministers who originally authorised the expenditure, but any further expenditure did not proceed.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend. Of course I understand that there is an opportunity in the courts for outside parties to apply for a judicial review or to challenge Ministers who were acting ultra vires. In the context of a referendum being held illegally by the Scottish Parliament, that would be completely disastrous, especially as it would disrupt the whole process and would make it difficult for us to get a resolution on this question one way or the other.
Part of me—perhaps the cynical, less charitable part—thinks that the First Minister would not be particularly disappointed by such an outcome because it would avoid the inevitable result which I believe the Scottish people, with their good sense, will give in a referendum. I understand that. My question really related to whether the Members of the Scottish Parliament who had voted for this or the Ministers who had done it would be subject to any sanction. Is there any process for this? How would it operate?
Lord Wallace of Tankerness
My Lords, I am reluctant to speculate on that, other than to say that I think we will come back to the issue of referendums in our debates next week. The important point at the moment is to concentrate on the positive, which is ensuring that agreement is reached so that the referendum can proceed on a proper legal basis.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend for dealing with this issue so carefully. I shall not press him on the referendum because I appreciate that it is an extremely sensitive matter. I understand the points that he made, which seem to cover the issue behind my amendment.
Perhaps I may say to my noble friend and to my noble and learned friend how much I appreciate the care with which they have dealt with the amendments during this session, which so far has run for 10 hours and more. I am sure they will also appreciate that those of us who tabled amendments for debate have used the time carefully to try to tease out a number of issues. I am looking forward to reading the Official Report over the weekend so that I can study some of the points that were made. On the basis of what my noble and learned friend said, I beg leave to withdraw the amendment.