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Public Bill Committee Debates

Draft Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2007

The Committee consisted of the following Members:

Chairman: Sir Nicholas Winterton
Bottomley, Peter (Worthing, West) (Con)
Breed, Mr. Colin (South-East Cornwall) (LD)
Brennan, Kevin (Lord Commissioner of Her Majesty's Treasury)
Cable, Dr. Vincent (Twickenham) (LD)
Ennis, Jeff (Barnsley, East and Mexborough) (Lab)
Evennett, Mr. David (Bexleyheath and Crayford) (Con)
Francois, Mr. Mark (Rayleigh) (Con)
Gray, Mr. James (North Wiltshire) (Con)
Hall, Mr. Mike (Weaver Vale) (Lab)
Khan, Mr. Sadiq (Tooting) (Lab)
McCarthy-Fry, Sarah (Portsmouth, North) (Lab/Co-op)
Marris, Rob (Wolverhampton, South-West) (Lab)
Murphy, Mr. Denis (Wansbeck) (Lab)
Neill, Robert (Bromley and Chislehurst) (Con)
Purchase, Mr. Ken (Wolverhampton, North-East) (Lab/Co-op)
Timms, Mr. Stephen (Chief Secretary to the Treasury)
Touhig, Mr. Don (Islwyn) (Lab/Co-op)
David Weir, Committee Clerk
† attended the Committee

Fifth Delegated Legislation Committee

Tuesday 13 March 2007

[Sir Nicholas Winterton in the Chair]

Draft Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2007

10.30 am
The Chief Secretary to the Treasury (Mr. Stephen Timms): I beg to move,
That the Committee has considered the draft Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2007.
The Chairman: With this it will be convenient to consider the following:
Draft Social Security Contributions (Consequential Provisions) Regulations 2007
Draft Social Security (Contributions) (Amendment No. 2) Regulations 2007
Draft Social Security, Occupational Pension Schemes and Statutory Payments (Consequential Provisions) Regulations 2007.
Mr. Timms: I begin by bidding you a warm welcome to the Chair, Sir Nicholas. The draft order and the three sets of draft regulations were laid before the House on 24 January and 19 February. I confirm that it is my view that they are compatible with the European convention on human rights.
The draft order has the effect of increasing contribution rates and thresholds for self-employed people and the weekly rate of voluntary class 3 contributions from6 April this year, broadly in line with inflation. Northern Ireland has a separate national insurance scheme, but it is closely co-ordinated with the scheme in Great Britain. In particular, contribution rate parity is maintained, and the draft order covers both Great Britain and Northern Ireland.
The three sets of regulations were laid on 19 February. They make use, for the first time, of powers contained in the National Insurance Contributions Act 2006. They provide for three things: first, the application of a backdated national insurance contribution liability on the amount of employment income charged to tax under the provisions of schedule 2 to the Finance(No. 2) Act 2005 and section 92 of the Finance Act 2006. Secondly, they put in place rules for the recovery and collection of that national insurance contribution liability. Thirdly, they ensure that those backdated earnings count for contributory benefit, occupational pension and statutory payment purposes. Like the draft order, the regulations apply to both Great Britain and Northern Ireland.
A National Insurance Contributions Bill was introduced in October 2005, becoming the National Insurance Contributions Act 2006 after Royal Assent on 30 March. The powers in that Act enable the Government to deal effectively with future tax and national insurance avoidance arrangements designed to frustrate the intention that the proper amount of national insurance contribution should be paid from the rewards of employment.
Mr. James Gray (North Wiltshire) (Con): Is there not a worrying precedent there? The Minister is effectively saying that because he has discovered a loophole or gap in regulations, the Government can now introduce retrospective legislation such as this to close it. Surely it should be incumbent on Her Majesty’s Government to close such loopholes when they pass the original regulations.
Mr. Timms: The hon. Gentleman is right, of course, about what is essentially happening, but I am pleased to remind him that there has been wide support across and outside the House that the draft legislation is a right and proportionate approach to increasingly sophisticated attempts to reduce the amount of tax and national insurance due from employers and employees.
I have read the debates in Committee, the House and indeed the other place on the matter over the last year or two, and I am pleased that there is, quite rightly, agreement across the House. When imaginative schemes are being devised specifically and purely for the purpose of reducing the amount of tax and national insurance liable, the Government should act to block them. That is what we did in the 2006 Act. The draft legislation is a novel but proportionate and effective approach to dealing with a problem.
Mr. Gray: The Minister is introducing an interesting and novel approach, as he says. Surely it is perfectly legitimate for businesses or individuals to seek to use every legitimate mechanism at their disposal to avoid or reduce their tax burden. Instead of saying simply, “These people are clever and have clever new ideas, so we’re going to bring in retrospective legislation to prevent them from using them,” surely the Government should have people just as clever working for them to come up with ways to prevent such loopholes in advance rather than retrospectively. I am asking merely about retrospection, not whether reducing tax is abad thing.
Mr. Timms: I am pleased to tell the hon. Gentleman that that is precisely what we have done in the draft legislation and in enacted legislation. We have provided the means to deal with any such problems that arise, and in that way to take account of the fact that ingenious minds will no doubt be applied to finding ways to reduce the liability. It is not unexpectedthat people will attempt to devise such means. The instruments are an effective way of dealing with them. I think that that will be welcome to Opposition Members.
Let me speak a little further about each of the three regulations. The Social Security (Contributions) (Amendment No. 2) Regulations will amend the principal regulations, the Social Security (Contributions) Regulations 2001, to apply the backdated national insurance contributions liability to employment income from employment-related securities. The intention to close a number of schemes using employment-related securities to avoid tax and national insurance was announced in the Budget last year. As I said, it is a proportionate, carefully targeted response to a small number of employers who continue to enter into such schemes despite a clear warning from the Government.
Provisions in schedule 2 to the Finance (No. 2)Act 2005 and section 2 of the Finance Act 2006 apply a tax charge to income from employment-related securities and securities options used in avoidance arrangements. The charge is backdated to 2 December 2004. Powers in the National Insurance Contributions Act 2006 can be used to ensure that a national insurance contributions liability is also applied to the same income backdated to the same date.
The Social Security Contributions (Consequential Provisions) Regulations 2007 enables the recording, collection and recovery of that backdated national insurance contributions liability. Employers will be required to amend the pay records of those employees in receipt of retrospectively treated employment income for years in which the income was actually received, applying the rate of national insurance contributions in force for the year in question.
For contributions arising by virtue of the Social Security (Contributions) (Amendment No. 2) Regulations 2007, employers will have until 19 June this year to pay the additional contributions due to HMRC. Before20 May 2008, employers must submit a separate return for each relevant year, setting out each affected employees’ amended earnings and national insurance contributions. Where additional national insurance contributions due include primary contributions, employers will be able to recover those from the affected employee’s earnings during 2007-08 and 2008-09.
The regulations mirror the provisions on collection and recovery of tax. The equivalent tax regulations, the Income Tax (PAYE) (Amendment) Regulations 2007, similarly require employers to amend the pay records of those employees in receipt of retrospectively treated employment income for the years in which the income was received, applying the tax code or higher rate of tax in force for the year in question. Payment of the tax will also be due by the same date, 19 June 2007, and a return for each relevant year before the same date of20 May 2008. If employers are unable to recover the additional tax due from employees’ pay in the period ending 5 May 2007 by virtue of existing provisions in the Income Tax (Earnings and Pensions) Act 2003 as amended by the Finance Act 2006, and if an affected employee does not make good to their employer the tax due and then paid by their employer within 90 days of 6 April 2007, that sum will become additional taxable income of the employee in 2007-08.
Thirdly, the Social Security, Occupational Pension Schemes and Statutory Payments (Consequential Provisions) Regulations 2007 ensure that the earnings subject to backdated national insurance liability also count for contributory benefits, occupational pensions and statutory payment purposes so that employees do not lose out on entitlements that they would have enjoyed had the payments been earnings at the time they had received them. Those and the collection regulations also provide the framework for dealing with any future payments retrospectively treated as earnings, and not only those brought into liability by the proposed regulation.
So, in keeping with the commitment that my right hon. Friend the Paymaster General gave during the passage of the Bill last year, the regulations were published in draft for comment on 16 August 2006. The comments were generally helpful. They did not suggest any substantial drafting issues. HMRC has published on its website a summary of the comments and its responses to them. Most of the comments focused on national insurance contributions avoidance disclosure rules, which were published at the same time. Those are subject to the negative resolution procedure. They are made under powers in the Act. Even though comments were passed on the rules, they were really on points of detail and did not raise issues of policy or principle. I hope that that will further reassure members of the Committee about the response there has been to the measures.
The Government are committed to deterring avoidance activity. I think that that aim would be shared right across the House. The regulations are the first use of new powers in the National Insurance Contributions Act 2006 and I commend them and the re-rating order to the Committee.
The Chairman: Before I call the representative of Her Majesty’s Opposition, I remind members of the Committee that the debate can continue for a total of one and a half hours.
10.45 am
Mr. Mark Francois (Rayleigh) (Con): It is a pleasure to serve under your chairmanship, Sir Nicholas. Last Thursday, we debated a statutory instrument about the annual uprating of tax credits, and we are now debating, at least with the first order, the uprating of national insurance.
This is the third time that I have debated the principal order. I was expecting to debate it with the Paymaster General, as on the previous two occasions. I understand that she cannot be here because she has suffered a bereavement. We on the Opposition Benches offer our condolences and I would be grateful to the Chief Secretary to the Treasury if he would pass those on. Nevertheless, we are pleased to see the Chief Secretary in lieu of the Paymaster General for those perfectly understandable reasons.
On this occasion we are debating four interrelated statutory instruments that are connected to national insurance. I have some questions to put to the Chief Secretary about the first order, which is about uprating, and then I shall discuss the three remaining instruments together, not least because they relate to retrospective changes to national insurance. As my right hon. Friend the Member for North Wiltshire—
Mr. Gray: I am not yet a right hon. Member.
Mr. Francois: It is purely a matter of time. My hon. Friend made the point that retrospective taxation changes are something about which we should always be wary, and so I shall scrutinise the Government’s rationale in some detail, and I hope that the Chief Secretary will offer some reassurances.
The first order uprates national insurance contribution rates for the new tax year beginning in April and has direct implications for classes 2, 3 and4 of national insurance payments. Class 2 contributions are paid by self-employed people once their profits reach a certain level, and are normally paid by a fixed weekly amount in arrears. The order proposes to raise the amount from £2.10 to £2.20, an increase of more than 4.7 per cent.
Class 3 contributions are paid voluntarily by people who want to fill in gaps in their records. Usually, but not always, such payments are contributions toward a retirement pension. The order increases the prescribed amount from £7.55 to £7.80, an increase of 3.3 per cent.
Class 4 contributions are paid by self-employed earners in addition to class 2 contributions and are currently levied at 8 per cent. between the lower and upper profit limits, then, since 2002, at an additional1 per cent. on profits or gains above the upper earnings limit. The order will increase the lower limit from £5,035 to £5,225, an increase of 3.77 per cent. The upper limit will be increased from £33,540 to £34,840, an increase of more than 3.8 per cent.
We have before us in the first order three classes of national insurance rates and bands that have increased at differing rates, varying from 3.3 to 4.7 per cent. Will the Chief Secretary say on what basis the increases are being made? Were they based on the consumer prices index, the retail prices index, average earnings, or some other figure? From memory, the Paymaster General has sometimes attributed such increases and the differences between them to the rounding of figures. Has that factor played a part?
Similarly, on two previous occasions in the run-up to a Budget, which this year will be presented on21 March, I have asked the Paymaster General to rule out on principle the full-scale merger of the tax and national insurance systems. On both occasions, the Paymaster General was able to reassure the Committee that no such merger was being considered. For the benefit of the Committee and our constituents, and at the risk of starting some sort of mini tradition, may I ask the Chief Secretary to repeat the reassurance that the Government are not planning to announce a full-scale merger of tax and national insurance in the Budget? It would be helpful to have that on the record.
Those are the questions I have about the uprating. We then come to the three remaining instruments, which are essentially anti-avoidance measures which relate back to a written statement made by the Paymaster General on 2 December 2004 to coincide with that year’s pre-Budget report.
The Treasury took steps in that written statement to begin to address what they perceived to be avoidance of tax in such areas as, to quote one example, the payment of a bonus to an employee in the form of dividends on shares in a specially constructed company. There were other examples as well. The relevant tax measures for dealing with this were included in the Finance Act 2005 and then in section 92 of the Finance Act 2006. Those dealt with the income tax implications of those measures. Changes in national insurance, however, are traditionally dealt with separately and the associated anti-avoidance measures relating to national insurance were included in the subsequent National Insurance Contributions Act 2006. That gave Ministers regulation-making powers in this area and those consequent regulations are the ones that we are debating this morning.
The principal one of the three regulations is the Social Security (Contributions) (Amendment No. 2) Regulations 2007, which has the practical effect of ensuring that retrospective tax treatment, as I outlined earlier, is mirrored by a retrospective national insurance treatment.
As the accompanying explanatory memorandum points out:
“Payments to employees involving employment-related securities which avoid income tax and national insurance contributions are treated as employment income for tax purposes by provisions in Finance Act 2005 and Finance Act 2006. The provisions in both finance acts are retrospective to 2 September 2004. These regulations ensure that payments to employees are similarly retrospectively treated as earnings and create a national insurance liability on those payments.”
The Social Security Contributions (Consequential Provisions) Regulations 2007 contain several measures, including setting out the extent to which employers can recover additional employee contributions from the employee and mirror the Income Tax (PAYE) Regulations 2003 (SI2003/2682), which dealt with the payment of backdated tax. The explanatory memorandum in this instance explains that the instrument sets out how national insurance contributions due on these new earnings are recorded, paid and reported to Her Majesty’s Revenue and Customs.
The Social Security Occupational Pensions Schemes and Statutory Payments (Consequential Provisions) Regulations 2007 essentially dictate that any such payments which are collected in this area should be allowed to count as contributions towards national insurance statutory contributions, contributory benefits and occupational pension schemes, and that in itself does not seem unreasonable.
We can see in essence what the Government is trying to do here. Nevertheless, I have several questions for the Chief Secretary on how all of this is likely to operate in practice. To begin with there is the question of the extent of these measures. The instruments themselves do not provide a separate regulatory impact assessment. One was provided for the National Insurance Contributions Act 2006. That regulatory impact assessment estimated that the measures would be limited in extent and that they would probably affect some 500 employers with an anticipated upper limit of some 10,000 employees and that additional costs would be incurred of around £3,000 per employer. On what were those estimates based in practice? Perhaps the Minister could give us at least an outline of the calculations that Her Majesty’s Revenue and Customs used when they sought to come up with the figures in calculating the likely extent.
There is also the debate about the retrospective nature of these measures that will now come into force in the new tax year, but which are, as I understand it and I think the Minister confirmed this morning, designed to be backdated in effect to the time of the PBR written statement in December 2004.
As a rule of thumb, the House is normally quite wary about passing retrospective legislation unless there are special mitigating circumstances. In this instance, the Institute of Chartered Accountants of England and Wales said:
“Although we understand the desire to counter unreasonable avoidance...we do not think that the introduction of retrospective legislation has a place in UK taxation.”
Presumably the Minister will argue that these measures were necessary to combat what he would judge to be unreasonable avoidance. However, if that is the case—[Interruption.]
The Chairman: Order. Will the hon. Member for Wolverhampton, North-East please take a seat in the Committee?
Mr. Ken Purchase (Wolverhampton, North-East) (Lab/Co-op): I apologise, Sir Nicholas.
Mr. Francois: Thank you, Sir Nicholas. If that is the Minister’s argument, why has it taken the Government so long to come up with these regulations, thus increasing the element of “backdating”, as it were? If it was so urgent to address this issue, bearing in mind that the income tax changes were first included in the Finance Act 2005, why were these regulations not consulted on in time for the National Insurance Contributions Act 2006? Why, in essence, did the Government not introduce those regulations in advance? In total, it has now taken more than two years for these regulations to be enacted, a point that was raised by my hon. Friend the Member for Fareham (Mr. Hoban), the shadow Financial Secretary, on Third Reading of the National Insurance Contributions Bill.
As Mike Warburton, who is a tax partner at Grant Thornton, has observed:
“Uncertainty is bad for business, bad for the economy and the threat of retrospective legislation is an uncertainty we could do without.”
Therefore, will the Minister make an undertaking that any future retrospective taxation will be mitigated by faster enactment into law? These are special circumstances and the Opposition acknowledge that. Nevertheless, the Government could have acted more quickly, so as to reduce the element of backdating.
Mr. Gray: Does my hon. Friend agree that there is a worrying precedent here? Almost every Budget speech includes tax-raising measures that are camouflaged as measures to close tax loopholes. If the precedent that is being set this morning were to be extended, who knows which tax areas would not then be subject to possible retrospection?
Mr. Francois: My hon. Friend makes a good point. We now have the second longest tax code in the world. Only India has a longer tax code than the United Kingdom, and we are likely to overtake them when we get the 2007 Finance Bill. One of the reasons why we have such a very long tax code is that it has been greatly added to by reams of anti-avoidance legislation, for which the Chancellor has a particular penchant, and this measure is yet another example of that.
The Government are arguing that there are special circumstances that necessitate the introduction of this anti-avoidance legislation, and moreover they are introducing it retrospectively. When my hon. Friends debated the 2007 Finance Bill, we acknowledged, up to a point, the Government’s case, as the Chief Secretary has indicated. Nevertheless, we are still concerned in principle about the requirement for retrospective legislation. That is why I have a number of points to put to the Chief Secretary this morning about how the measure will operate in practice, and we hope that this process is by no means going to become the norm. The Government have argued that this is a very special circumstance and we hope that we will not see much more of this in practice. Equally, if the Government feel compelled to introduce such retrospective legislation, why has it taken them two years tocome up with the regulations that they intended to enforce?
In terms of how the measure will operate in practice, I would be grateful if the Minister could comment on the mechanism for payment for employees with liabilities that will now arise from 6 April 2007. Is it conceivable that the PAYE system could necessitate an employee paying back substantial amounts in a short period of time? Are there provisions for employees who may have switched employer, or indeed employees who now have no employer? How will the Government deal with people in those circumstances?
Finally, in the explanatory memorandums the Minister states that these provisions are compatible with the European convention on human rights. Given the discussion on Third Reading of the National Insurance Contributions Bill about the lack of a transition period, will the Chief Secretary comment on why he believes that the measures are compatible with EU law?
In summary, we can understand the history of the process and see what the Government are seeking to do and why. However, I would be grateful if the Chief Secretary could answer the questions that I have asked him. I reiterate that we should like specific reassurance that such unusual retrospective legislation will not become a normal Treasury tactic and that, in the rare cases in which it is judged necessary, such measures will be enacted as quickly as is practically possible for the certainty of our tax code and of taxpayers.
11.1 am
However, there is broad agreement that if retrospection is intended to counter unreasonable avoidance and if people are deliberately avoiding paying proper tax and national insurance, perhaps it should be used. That applies even more when an explicit warning has been given that, should people continue to do that, they would fall within anti-avoidance legislation. Nevertheless, none of us would wish retrospective legislation to become the norm. The circumstances may be seen, if not as unique, as very special circumstances. We hope that we will not see such measures regularly.
Fair taxation demands that fair contributions be made. Those with the capacity and finance to find loopholes and technicalities to avoid their proper responsibilities should be found out and made to pay their proper contributions. Overall, we support these final regulations.
11.3 am
Mr. Timms: I am grateful to the hon. Member for Rayleigh for his response to what I said. I felt that he was a little grudging about the steps that the Government have taken to tackle tax avoidance. The shadow Financial Secretary, the hon. Member for Fareham, whom the hon. Gentleman mentioned, said in the debate last June that he supported measures to tackle tax avoidance. There was not quite the same ringing endorsement in what the hon. Member for Rayleigh said this morning. The hon. Member for Fareham went on to say that he was cognisant of the risk of tax avoidance and the way in which people seek to hide remuneration through schemes dressed up as share option schemes and so on. He was absolutely right. The hon. Member for Rayleigh said that he could see what the Government were trying to do, for which I am grateful, but it is right that across the House we recognise the seriousness of the problems and the need to address them.
Mr. Francois: I do not think that I shall bog the Committee down by reading out a lot of extracts, but on that occasion my hon. Friend the Member for Fareham also criticised the Government for the delay in coming up with draft regulations. I have also criticised the Minister for that, so in fact my hon. Friend and I have been quite consistent.
Mr. Timms: I will certainly come to the point about the alleged delay in a moment, but I shall first answer the hon. Gentleman’s questions about the re-rating changes. He asked whether they would be in line with the retail prices index or the consumer prices index. They will be in line with the RPI, as in other legislation on such matters. Of course, rounding issues arise each year, but RPI is used and consistently applied.
The hon. Gentleman asked me whether I could reassure him about the Government’s intentions regarding merging tax and national insurance, and I think that I can. They are different systems with different purposes. Tax is a charge on all income; national insurance is a contributory system, not a tax. Those different purposes are the reason for lots of the differences between tax and national insurance contributions. In the past, we have acted to align tax and national insurance to reduce burdens. We announced a review of the case for further alignment at last year’s Budget, and that work is continuing, but we have no plans to merge tax and national insurance.
The hon. Gentleman asked me about the basis for the figures in the regulatory impact assessment. Those estimates have been calculated, for example, using historical data on the numbers of employers who have used schemes to avoid tax and national insurance, and we have considered the administrative costs of revising and paying the national insurance liability. We have used a fairly conventional means of estimating the overall liability.
He expressed concern, as did the hon. Member for South-East Cornwall, about retrospection as a general approach. I am particularly grateful for what the hon. Member for South-East Cornwall said about the need for such an approach in the circumstances, but my right hon. Friend the Chancellor made it clear at the 2004 pre-Budget report that we were no longer prepared to play cat and mouse with those trying to avoid paying their fair share. All those who still attempt to avoid their responsibilities can have complete certainty that the Government will act to close those routes. The evidence is clear that our approach has been successful.
The hon. Gentleman asked me why it had taken more than a year to bring the draft legislation to parliamentary scrutiny. It follows the coming into force of the National Insurance Contributions Act on30 March last year. A commitment was given during the passage of the Act that affirmative regulations made using powers in the Act would be subject to consultation. First drafts were produced last August to allow for 12 weeks of consultation starting in August, followed by further drafting refinement. The draft legislation before us this morning has benefited from all that, and the process has allowed HMRC to produce a good and coherent set of regulations that will come into force on the same day. I do not think that there has been undue delay.
We have been careful to incorporate safeguards to prevent the powers from being misused. I can reassure hon. Members that they will not be used too widely. For example, we cannot use them without a corresponding retrospective tax measure. The report on the Bill by the Delegated Powers and Regulatory Reform Committee concluded:
“We consider that the powers in the Bill are sufficiently circumscribed and are appropriate.”
I hope that that is reassuring.
On the point about uncertainty, there really is none. The Government have made it clear since 2 December 2004 that where employment-related rewards are paid in a way that seeks to escape liability for tax and national insurance, we will act to stop it. There is no uncertainty. Anyone who is not attempting to escape liability need not worry about the regulations. They can get on with running their business successfully without having to be concerned.
In terms of retrospection, we have made it clear that we will use appropriate and fair measures to tackle avoidance wherever it emerges. My right hon. Friend the Chancellor’s December 2004 statement was clear and focused, providing certainty. I can reassure the hon. Gentleman that we have taken steps when drafting the order and regulations to ensure that they are fully compatible with our obligations under the European convention on human rights.
Finally, I agree with the hon. Member for South-East Cornwall, who said that, given the scale of the challenge that we face in this area, the measures are a proportionate response. I hope that the Committee will support them.
Question put and agreed to.
That the Committee has considered the draft Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2007.


That the Committee has considered the draft Social Security Contributions (Consequential Provisions) Regulations 2007.—[Mr. Timms.]


That the Committee has considered the draft Social Security (Contributions) (Amendment No. 2) Regulations 2007.—[Mr. Timms.]


That the Committee has considered the draft Social Security, Occupational Pension Schemes and Statutory Payments (Consequential Provisions) Regulations 2007.—[Mr. Timms.]
Committee rose at twelve minutes past Eleven o’clock.

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