Taxation (Post-transition Period) Bill

Debate between Pat McFadden and William Cash

3rd reading & 3rd reading: House of Commons
Tuesday 15th December 2020 Commons Chamber

[Sir William Cash]

Provided the treaty itself, and therefore the Act of Parliament that follows from it, maintain the principles I set out in my question to the Secretary of State for Business, Energy and Industrial Strategy yesterday, there is no question as to whether we will be entitled to exercise our sovereignty and to displace European Court jurisdiction and the EU laws, for example—there are many others—on state aid. We will be entitled to do so, but it is a matter of constitutional law and also, as I have explained, international law.

I am afraid that there has been a great deal of assertion that we are so-called potentially in breach of international law, but international law recognises the fact that a country can exercise its sovereign rights to defend its economic interests from a national point of view. In fact, Helmut Schmidt did precisely that in, I think, 1998 over the question of the deutschmark and the dollar. There are many examples, and we have not got time to go into them all today.

I will turn to some of the precedents just to illustrate the fact that it is not such a novel idea somehow or other to use a “notwithstanding” clause or formula, and that applies to all parties, whether that is the Labour party, the coalition, where the Liberal Democrats joined in and voted with us on these matters, or the Conservative party. For example, the Income and Corporation Taxes Act 1988 provides that the parts that diverge from treaty obligations—the language of the section was completely unambiguous—were “notwithstanding anything contrary” to those arrangements set out in the Act. The section was enacted to retaliate against the introduction of unitary tax systems adopted by certain states in the US, most notably in California. I think my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) may know about that.

What I am saying is that such provisions are not exactly unusual. Indeed, in the Finance Act 2013, which was under the coalition, the Liberal Democrats went along with allowing Parliament to effectively write a blank cheque to interfere with international treaties—approximately 130 of them, in fact. That provision is still in force. No one questioned the Chancellor’s right to introduce any such legislation or, indeed, the lawfulness of the work of Her Majesty’s Revenue and Customs, which still relies on it in combating questions relating to such arrangements.

Then there are other precedents. I shall stick to Finance Acts at this juncture as that is what we are dealing with in the context of this particular Bill, which is, of course, a finance Bill. Section 52 of the Finance (No. 2) Act 1945 overrode aspects of the Ireland-UK tax treaty of 1926. I hope I may be allowed a slight smile here, as I look across the Irish sea and consider the position with regard to the Irish Government in relation to the “notwithstanding” clauses, because we actually did this in 1926. The Act was used as an example in a case involving Collco in which the court said that if the statute is unambiguous, its provisions must be followed even if they are contrary to international law. It could not be clearer. The Finance Act 1955 again overrode the Ireland-UK tax treaty. In the Inland Revenue Commissioners v. Collco Dealings, Viscount Simonds said, “The company has no rights under any agreement. Its rights arise from the Act of Parliament, which confirmed the agreement and give it the force of law.”

Section 59 of the Finance Act 2008 excluded UK residents from benefiting from provisions in respect of profits from the trade etc. Then there is the coalition arrangement under the Taxation (International and Other Provisions) Act 2010 where, again, the position was made entirely clear in accordance with the precedents.

Indeed, it is not just the UK, or even a party in the UK, that has been doing this over a period of time in its economic and national interests. An example from 2020 is the European Central Bank’s bond-buying scheme. In May 2020, the German constitutional court sought to override EU law and the Court of Justice, suggesting that the ECB’s public sector purchase programme was unconstitutional. Then there are the bail-outs. Every one of the bail-outs from 2010 to 2015 could justifiably be described as in breach of article 125 of the Treaty on the Functioning of the European Union. I will not read out the details, but I shall give some examples: the first Greek bail-out in 2010; the Irish bail-out in 2010; the Portuguese bail-out, the second Greek bail-out; the Spanish bail-out; the Cypriot bail-out; and the third Greek bail-out in 2015. There are so many examples—whether in the UK, or in relation to other member states, or, indeed, in relation to the EU itself—that have demonstrated that, when it comes to the question of sovereignty and the ability to override treaties, this is done quite often as a matter of course. I am not saying that it is done generally. I am not saying that it happens every week or every day. What I am saying, however, is that it happens and that it happens for good reasons which are directly related to the arguments on sovereignty which I gave at the beginning, and it is not for the unelected House of Lords to tell us. That is why, in this Bill, they would not have been able to do so because of the issue of financial privilege.

I am bringing forward these amendments. I shall decide as we proceed whether I will press them to a vote. I will leave it at that for the moment, because I am more than fascinated to hear the usual Europhile utterings of the right hon. Member for Wolverhampton South East (Mr McFadden) who is about to speak.

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

It is a pleasure, as always, to follow the hon. Member for Stone (Sir William Cash). I rise to speak to new clause 3 in the name of the Leader of the Opposition, and, with it, amendments 1 and 2, which are also in his name and the names of my right hon. and hon. Friends. These amendments are pro-business and pro-compliance. They are motivated by trying to get as much information to the businesses affected by the changes in this Bill in as short a timescale as possible.

The Bill that we are discussing sets out a number of taxation changes, many of them as a result of the Northern Ireland protocol. These measures will have an impact on businesses throughout the United Kingdom, but in particular, businesses in Northern Ireland and those who trade with them. In a recent evidence session for the Northern Ireland Affairs Committee, HMRC was asked how many new declarations there would be under the kind of system set out in the Bill. The official giving evidence said, to be fair, that it was a new system, so they could not be sure, but that there could be about 11 million new declarations a year. That is a sizeable additional amount of information that businesses have to publish.

The amendments we are putting forward this afternoon try to help those businesses to cope with the changes set out in the Bill. I should stress that nothing in these amendments alters the terms of the changes set out in the clauses or the purpose of the Bill. The Government have signed up to the protocol and we want to see them abide by the agreement they have made. There may be those in the Conservative party—in fact, there almost certainly are—who do not like the obligations that the protocol entails, but we believe that the Government should stick by the commitments they have made. The changes in the Bill are largely, though not entirely, a consequence of that agreement.

However, many of the clauses in the Bill are enabling in their nature. They confer on the Treasury powers that are to be filled in at a later date. For example, clause 1 says that the Treasury may by regulations provide a definition of goods being imported into Northern Ireland that

“are at risk of subsequently being moved into the European Union.”

It goes on to talk about which duties shall apply in the case of these so-called at-risk goods. Very similar language is used in clauses 2 and 5 and a number of the schedules—that the “Treasury may by regulations” provide.

To be fair to the Minister and to the authors of the Bill, there is nothing unusual about a Bill taking enabling powers that are then to be set out in further detail in regulations that come after the Bill has passed its parliamentary proceedings, but what is unusual is the context and the timescale involved. The end of the transition period is in just 16 days and, in the middle of those 16 days comes the Christmas holidays, so the Government are asking businesses to absorb, prepare for and comply with a new series of taxation regulations that those businesses have not yet seen, and to do so over a two-week period coinciding with the biggest holiday of the year. And they are doing that at the end of a year in which the very same businesses have already faced unprecedented turbulence in the wake of a global pandemic.

The businesses concerned do not want to fall foul of regulations. They want to comply. They want to be able to get this right. Businesses in Northern Ireland and the trade bodies that represent them have put in enormous efforts over the past few years to try to prepare for this moment. Of course, they could have spent all that time and effort doing what they were set up to do, which is to provide goods and services to their customers, but the process of Brexit and the specific circumstances of Northern Ireland, which are now enshrined in the Brexit withdrawal deal, have meant that a great deal of effort has had to go into trying to understand the trading and taxation rules that will kick in after the end of this year. So here we are with this Bill, with just over two weeks to go. With the best will in the world, how do the Government expect them to do this on this kind of timescale?

The purpose behind the amendments is very simple: it is, even at this late stage, to encourage the Government to get a move on. When I moved a similar amendment in Committee last week, the Minister said that guidance had been published in October, but that is not what we are talking about here. We are talking about the details of the regulations enabled by this Bill, which was published only last week.

The Minister cannot seriously be telling the House that everything covered by the Bill was dealt with in October, and there is nothing more to add. If that was the case, it would prompt the question as to why it was published only last week. The answer, of course, is that the Government wanted to use it to hold the threat of the kind of provisions that the hon. Member for Stone has just been talking about over the trade negotiations—a damaging and self-defeating tactic.

Taxation (Post-transition Period) Bill: Business of the House

Debate between Pat McFadden and William Cash

Wednesday 9th December 2020 Commons Chamber

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

I want to make a few comments about this business of the House motion, because I think it is indicative of where we have got to.

After four years, we have a Bill on the taxation arrangements after Brexit that is to be debated in less than four hours. Not only that, but it is a Bill of over 100 pages in length that was published less than 24 hours ago. The Minister may claim that the House has passed emergency legislation in a single day in the past, and of course that is true: the House can do that in emergency circumstances. But this deadline that we face at the end of the year is not new. It is not a surprise. It has been known ever since the withdrawal agreement was reached. The Government have said repeatedly over the past year that this was an immovable deadline. So why is it, just three weeks before that deadline, that the Government are only publishing these arrangements and this timetable now?

Businesses in Northern Ireland, and those that do a lot of trade with Northern Ireland, could have been given some idea of what was coming long before now, but as it stands, not even the Bill before us gives them certainty, as so much of it has to be followed up with further regulations. The truth is that there was no need for this last-minute legislative scramble. The real reason we are in this position—the reason why this business motion is before us and gives the House so little time—is that the Government thought that it was a good negotiating tactic to breach the agreement, or to threaten to breach the agreement, that they reached with the EU last year. They threatened to do that in this Bill as well as in the United Kingdom Internal Market Bill. As so often, it was a threat posing as strength that ended up doing more harm to us than to anyone else. That is why this Bill was so late, and that is why the time to debate it is so short.

The Government, immediately before they embark on a new future based on trade deals, chose to advertise around the world that they were willing to break the last one that they signed. Boasting about your willingness to go back on your word is not an illustration of strength; rather, it is a graphic portrayal of what Brexit has done to the Conservative party.

[Sir William Cash (Stone) (Con)]

Will the right hon. Gentleman give way?

[Mr McFadden]

I am going to continue, because I do not have long to go.

As the House has been reminded, it was Mrs Thatcher who said:

“Britain does not break treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade”.

The threat to do so has left us with the timetable for this Bill. That inevitably means that scrutiny of today’s measures will be severely truncated and parts of it will go through without being properly examined. What we have before us is the appearance of scrutiny, not the reality—Potemkin scrutiny. That is what a timetable like this gives us.

This is not just about us here in this House—it also leaves businesses affected, with little or no time to absorb and understand what is being planned. There have been many comments on the state of things in recent days, but perhaps the most pithy has come from the chief executive of the Road Haulage Association, who said this week, commenting on the border arrangements:

“Frankly, it’s just a mess.”

The bigger point here is that the reason why we are in this position is that the Government’s approach to all of this has relegated concerns about business, prosperity and people’s livelihoods to a distant second place. This motion and the approach behind it are not only bad for the legislative process, but bad for the country too.