Draft Subsidy Control (Subsidies and Schemes of Interest or Particular Interest) Regulations 2022

Seema Malhotra Excerpts

Monday 14th November 2022 General Committees

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

It is a pleasure to serve under your chairship, Mr Gray. This statutory instrument fills important gaps left by the Subsidy Control Act 2022, which received Royal Assent earlier this year. It defines subsidies or schemes of interest or particular interest. It is an important instrument, and we support it. I think we all agree that it is in the interests of levelling up, place-based prosperity, national growth and our green transition that the Act becomes operational as soon as possible.

I am surprised and sorry that the Act leaves unanswered crucial questions that I and Labour colleagues raised during its passage—having had four Secretaries of State and four Ministers may have something to do with that, but the Minister may have a different view. As we made clear, Labour recognises the need for a new statutory framework for subsidy control. It is required by the trade and co-operation agreement that the UK entered into with the European Union and by our wider international commitments as a World Trade Organisation member.

Subsidies, when effectively used, are an essential element of industrial strategy for businesses large and small, but they need to be effective, fair and accountable. We need Government to get behind the businesses and industries that will deliver growth, jobs and prosperity in every part of our country in the years ahead, and to deliver on national missions and a long-term plan that will help provide confidence for investment. At the same time, we need rules and processes to ensure that that is done in a fair and transparent way, so that fair and beneficial competition is preserved and not distorted, businesses and industries are not unfairly disadvantaged, and public money is not spent on the basis of personal favours or improper political considerations.

In short, we need a clear focus on impact, transparency and value for money. The regulations provide much-needed clarity and criteria on issues that were not resolved by the 2022 Act and that were left for secondary legislation. Those specifically concern the definitions of subsidies and schemes of interest or particular interest under the Act. Part 4 of the Act provides for certain subsidies or schemes to be referred to the Competition and Markets Authority. A public authority must request a report from the CMA on a subsidy or scheme of particular interest before the subsidy or scheme is given or made. A public authority may request a report from the CMA on a subsidy or scheme of interest before the subsidy or scheme is given. In each of those cases, the CMA must advise the Secretary of State whether the subsidy or scheme is consistent with the subsidy control principles and whether there are any changes to its design that could ensure better compatibility. I will come back to the issue of the recommendations from the CMA being non-binding.

As the Minister said, the instrument sets the minimum threshold for subsidies and schemes of particular interest at £1 million. A subsidy or scheme will be of particular interest where the total value given to a business exceeds £10 million in three financial years, regardless of which public authorities have given those subsidies; where the total value exceeds £5 million in three financial years but the business is in a sensitive sector, we will also come back to that briefly; where it is provided to restructure an ailing or insolvent business; or where it is conditional on the beneficiary relocating and has a value of over £1 million. Other subsidies between £5 million and £10 million, individually or cumulatively, will be subsidies of interest.

The challenge is ensuring that thresholds are set at a level that captures cases that merit the specified level of scrutiny, without imposing burdens on the CMA or ultimately frustrating much-needed initiatives, perhaps needed at speed to strengthen businesses in particular industries or places. We must be careful that the standard thresholds identified do not capture too much in some areas and too little in others. It would be helpful to understand the process for reviewing the impact, transparency and value for money. The CMA will, I think, report initially after three years on the whole process, but it would be helpful to understand whether the Minister or the Secretary of State will request earlier reports. We support the introduction of thresholds, but it would be helpful if the Minister expanded on the Government’s reasoning for setting the threshold at £1 million. Did respondents to the Government’s initial consultation—I have a copy here—recommend and agree to such a threshold?

The instrument also specifies areas of economic activity termed “sensitive sectors”, which my right hon. Friend the Member Hayes and Harlington raised, where levels of scrutiny will automatically be higher because there is thought to be, according to comments to the consultation, greater risk of subsidies distorting competition or damaging industrial development. The sectors specified are primarily in the areas of metals production, including iron and steel; transport manufacture, including aerospace and automotive; and electricity production. Why is that important categorisation not subject to wider debate, as we called for during the passage of the Subsidy Control Bill?

The consultation outlined some of the criteria, including that there might be a record of international trade disputes or evidence of global overcapacity, but I note concerns raised in the Government’s consultation that some sectors included in the category might be disadvantaged relative to their close competitors in other countries. Others have called for sectors to be added to the list, including transport, ports, airports and air carriers. It would be interesting and helpful if the Minister expanded on the Government’s reason for including certain sectors in this category and not others that were raised, and on the likely impact of being in or out of it.

I highlight the additional level of scrutiny provided for any intervention aimed at supporting the relocation of activities in any sector. We argued during the passage of the Subsidy Control Bill that addressing local or regional disadvantage should be explicitly recognised as an important policy objective—something that a Government who claim to be committed to levelling up opportunities and living standards across the country should have as a key focus. Again, it is essential that the provisions around relocation do not act as a barrier or have a deterrent or chilling effect on initiatives that may be undertaken—by devolved authorities, for example—to attract investment and support job creation in every part of the country.

We raised numerous critical questions during debates on the subsidy control regime, but they have not been answered in the Minister’s speech or in the documentation. During the passage of the Bill, we called for greater powers for devolved Administrations so that they could challenge schemes that they believed might put their visitors and communities at an unfair disadvantage. Does the Minister have any further response to that? The Government’s consultation states that the Scottish and Welsh Governments have not formally responded to it, but that they will instead be providing their views directly in correspondence; I believe that Northern Ireland Ministers have been unable to respond because of the suspension of the Executive Committee. Do we have confidence that the views of the devolved Administrations have been taken into account? Importantly, what dialogue is ongoing with devolved Administrations about the subsidy regime?

We also called for the Competition and Markets Authority to be given more power to proactively investigate subsidies and schemes of concern, addressing the accountability gap that experts have identified in the framework. This SI addresses the question of which subsidies and schemes will be, or can be, referred to the CMA to report on. However, unless the Minister wants to correct me, the recommendations of these reports will still be non-binding, whether or not they relate to schemes of interest or schemes of particular interest. Will the Minister provide examples of instances when the CMA might advise against a proposed subsidy or scheme being given, but it is appropriate for the Secretary of State or another public authority to act against that advice? If he cannot think of such a situation, will he reconsider whether the CMA’s advice should be binding, particularly for schemes and subsidies of particular interest? It would be helpful to understand that.

It would also be helpful to be clear about how we—as taxpayers, as members of the public and as Parliament—will know if a public authority chooses to proceed with a subsidy or scheme of interest or particular interest without taking into account the CMA’s recommendations. Will that be reported on for the sake of accountability and transparency to Parliament, and will the reasons for disagreeing be published?

The impact assessment suggests that the cost is likely to be around £15 million, largely for the subsidy advice unit at the CMA. Will the Minister clarify whether those resources have already been allocated, or whether he might expect them to be? It would be helpful to understand that. I think he will recognise the words “legislation without implementation”, and we can all agree that that is of no help to anyone. I am sure he will be helpful in clarifying that.

We had some debate about tax subsidies during the Bill’s passage. Will the Minister clarify why, as far as I can tell—perhaps he can confirm this or correct me—all tax subsidies will be subsidies of interest, not subsidies of particular interest? Why has that decision been made?

Finally, I note that we have no idea what the Government’s overall plan for business support and industrial strategy is. The 2019 Conservative manifesto was full of promises and ambitions, but nearly three years later what do they have to show for it? The Industrial Strategy Council has been disbanded. There has been a succession of Secretaries of State, most of whom have fallen out of favour. There is still no sign of the Government living up to their rhetoric on levelling up or any sign of the investment we need to put us on track for net zero.

During the passage of the 2022 Act, Labour consistently called for the Government to state or release their strategy for subsidies. The new statutory framework of the subsidy control regime should provide the Government with an opportunity to introduce a comprehensive strategy for subsidies and industry as a whole and for that to be part of a long-term plan for growth, yet we are still waiting.

Although we support this instrument, I would welcome answers from the Minister to the questions I have raised. I urge the Government to match Labour’s ambitions for business and industry by implementing a proper industrial strategy for our country’s economy that will also help provide direction and strategy for public authorities seeking to make subsidies in line with the intentions under this legislation.

--- Later in debate ---

[Kevin Hollinrake]

I take that point and commit to writing to the right hon. Gentleman about that.

On the shadow Minister’s point about the non-binding nature of judgments from the SAU, they are obviously subject to a potential legal challenge. If a public authority declined to accept the recommendations of the SAU, which seems quite unlikely, it would open itself up to legal challenge, either by a competitor or organisation in receipt of subsidies, another country or the EU, for example. It seems an unlikely state of affairs, but we believe the public authority should be able to use its judgment, obviously while heeding the advice of the SAU.

In terms of scrutiny, any referral to the SAU is published on its database, showing what referrals have been made, and any recommendations by the SAU are published. That provides for scrutiny over the decisions made by either the SAU or the public authority.

[Seema Malhotra]

The Minister is right that referrals made to the SAU and its reports will be published, but the question was whether a subsequent disagreement would be published anywhere. If a public authority chooses not to go along with the recommendations, is there any transparency over that?

[Kevin Hollinrake]

There is certainly transparency in terms of any referral, which would be on the public record. The response from the SAU would also be public. I do not understand the hon. Lady’s further point. It is a decision for public authorities, at that point. If they choose to ignore the advice, on their head be it.

[Seema Malhotra]

I thank the Minister for his generosity in giving way again. For example, as part of the process, a public authority that disagreed with the recommendations in a report within 30 days from the SAU could need to send it a letter to say, “We have taken your report, but have chosen to disagree with the recommendations.” That would then be on the public record.

[Kevin Hollinrake]

That is a fair point. I will take it away and write to the hon. Lady.

I mentioned sensitive sectors in my previous points. On what was and was not in the Bill—the hon. Lady raised that earlier—the reason we did it this way around is to allow for feedback, and not just from parliamentarians debating the sensitive sectors, for example. We think that it is important to get feedback from the sectors themselves—the stakeholders. We published our position in January, had a consultation from March to May, then introduced draft regulations that we believe deal with the issues raised.

It is true that the devolved Administrations said that they would not contribute directly to the consultation, but they have engaged with us to a great degree, including through correspondence and in a number of meetings. Their positions were all points of clarification. No objections were raised to the measures. I do not know whether the resources that the hon. Lady referred to have been allocated, but will happily write to her on that. The way we are dealing with tax subsidies mirrors how the EU dealt with them. We felt that that was appropriate, rather than doing something different. There are specific reasons for that, particularly with regard to how the Treasury operates.

I thank hon. Members on both sides of the Committee for their valuable contributions to this excellent and informative debate. The draft regulations are crucial to the effective functioning of a new UK subsidy control regime. They define the small proportion of subsidies and schemes that will have greater potential to lead to undue distortion and negative effects, and should be subjected to additional scrutiny by the SAU. As such, I commend the draft regulations to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Subsidy Control (Subsidies and Schemes of Interest or Particular Interest) Regulations 2022.