Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Davidson of Glen Clova

Thursday 15th March 2012 Lords Chamber

[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.

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[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.

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[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.

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[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.

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[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.