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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?
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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.
53A: Clause 30, page 23, line 6, at end insert-
"( ) 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."
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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.
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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
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Lord Forsyth of Drumlean: My Lords-
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.
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Lord Forsyth of Drumlean: My Lords, I know that I am beginning to sound like a broken record.
Lord Maxton: Why change the habits of a lifetime?
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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
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54: Clause 30, page 23, line 6, at end insert-
"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?
Lord Forsyth of Drumlean: I am speaking to Amendment 54A.
Baroness Verma: Does the noble Lord wish to move Amendment 54? It needs to be taken before Amendment 54A.
The Deputy Chairman of Committees (Baroness Pitkeathley):It may be of assistance to the Committee if I point out that Amendment 54A comes after Amendment 54ZA, which in turn follows Amendment 54, which is the amendment that I thought the noble Lord was speaking to.
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Lord Lyell: Will the noble Baroness confirm that? I have the grouping list. Perhaps somebody will be kind enough to give me a new grouping list because what I have on my grouping list contradicts what the noble Baroness said. It shows Amendments 53A, 54A and 54 separately.
Baroness Verma: My Lords, we take the amendments in order.
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.
The Duke of Montrose: My Lords, this is a paving amendment, and I shall address my remarks also to Amendment 54BA and the other amendments in the group. Amendment 54BA will remove the close connection condition for the purposes of identifying a Scottish taxpayer. This is an effort to remove the complications that come from trying to prove a close association, which is a concept that raises many questions of definition and interpretation. The argument is that the best way to define a Scottish taxpayer is without reference to residence in Scotland. Instead, the definition should be based on being a UK citizen and spending more time in Scotland than in other parts of the United Kingdom. This argument has been put to me by the Law Society of Scotland, and I think it has weight.
Perhaps the definition I have just pointed out goes some way to answering the call of the Institute of Chartered Accountants of Scotland for a definition in statute of what constitutes a Scottish taxpayer. At present, new Section 80D defines a Scottish taxpayer as,
- "an individual ... who is resident in the UK for income tax purposes, and ... who, for that year, meets condition A, B or C".
These conditions are that the taxpayer,
- "has a close connection with Scotland ... does not have a close connection with any part of the UK other than Scotland ... and ... spends more days of that year in Scotland",
or is an elected parliamentary representative for Scotland.
The residence qualification is typical of the sort of issue that has raised controversy in recent legal cases. I mention Gaines-Cooper v Her Majesty's Revenue and Customs and Tuczka v Her Majesty's Revenue and Customs. New Section 80D, when combined with new Sections 80E and 80F, presents problems for those
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Lord Maxton:There are, of course, people who live in Scotland, who even work in Scotland, but who are paid from England or elsewhere in the United Kingdom. They, too, create a problem because, as far as I am aware, the PAYE system does not depend on where you live but where you work or who you are employed by.
The Duke of Montrose:My Lords, this is the type of complication that we are talking about. In fact, the way the Bill is at the moment, it will practically be a question of where you spend the night. There are commuters from Glasgow or Edinburgh to London, and a variety of public office holders, who may have a place of residence in Scotland yet work for considerable periods in England or Wales, such as Members of the House of Lords, who are not included in new Section 80D(4), or Supreme Court judges. If a clause such as this remains, should the Bill not contain an obligation for each individual to state what he regards as his main place of residence?
New Section 80E also highlights the issue of split-year residences. Unfortunately I just missed the debate immediately preceding this, but I thought that my noble friend Lord Forsyth would cover the point. Her Majesty's Revenue and Customs currently applies, in extra-statutory concession A11, split-year treatment to individuals who spend only part of the tax year resident in the United Kingdom. The concession means that, for example, an employee who comes to the UK for a secondment beginning on 1 June would be regarded as a non-UK resident and therefore non-taxable in the UK on his or her general earnings from the same employment for the period from 6 April to 31 May in that year.
The Law Society of Scotland questions whether setting up the provisions of new Sections 80D, 80E and 80F will require the creation of a similar extra-statutory concession. It would seem more sensible to create a robust system that does not rely on extra-statutory concessions in order for it to work-one whose fundamental architecture takes account of movement of people within the United Kingdom, and therefore within different tax zones, in one tax year.
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The provisions will need some amendment to deal with changes the residence status of a number of categories of employee-perhaps the point made by
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Lord Lyell: I strongly support my noble friend and I hope that I might save some time. There was plenty that I was going to say on Clause 30 stand part, but thanks to the excellent and wonderful briefing that my noble friend the Duke of Montrose had from the Law Society of Scotland, I do not need to. I, too, have had a considerable briefing from the Institute of Chartered Accountants of Scotland.
When we discussed this at an earlier stage, I took a dig from my noble and learned friend the Advocate-General about the great singer Mr Andy Stewart. Mr Stewart used to sing, "Take me back"-and perhaps I can take your Lordships back to the Scotland Act 1998. On page 35, Section 75(6) says:
"In this section 'place' includes a place on board a vessel or other means of transport".
I direct the Committee's attention to page 24 of the Bill before us. New Section 80E(4) says just the same:
"In this section 'place' includes a place on board a vessel or other means of transport".
Both in 1998 and at Second Reading I raised the question of people who are employed on a means of transport-for example, lorry drivers-or at sea on a vessel. In 1998 the government spokesman, the noble Baroness, Lady Ramsay of Cartvale, referred to houseboats. That is absolutely fine. My noble friend has just spoken about people on oil rigs. I made inquiries and I understand that nothing has changed in 14 years, that "on board a vessel", as in this Bill and Section 75 of the Scotland Act, includes people on ferries. Perhaps I can direct my noble friend the tax specialist's attention to the ferries at Cairnryan or Stranraer.
Perhaps noble Lords who are experts in the law will be able to advise me, but I am given to understand that if a UK taxpayer-at Cairnryan or Stranraer it would be a Northern Ireland taxpayer-is on board that vessel, either when the clock strikes midnight or at a relevant time, he or she is deemed to be a Scottish taxpayer. Then you have to calculate how many days you are on board that vessel. You have to do some sums and we still do not know-it is rather like O-level algebra-what will be the proportion of the days you spend in Scotland or elsewhere in the United Kingdom. You have to deduct from that days you have spent outside the United Kingdom. That will come into the mix as well.
When we discussed this in 1998, my late noble friend Lord Mackay of Ardbrecknish said that to classify UK taxpayers from Northern Ireland or elsewhere outside Scotland as being Scottish taxpayers because they were on board a ferry as part of their work would be "plain daft". He put it much better than I do, and I rest my case.
Lady Saltoun of Abernethy: My Lords, following on from the noble Lord, Lord Lyell, what about people who are either travelling on or employed on the night sleeper?
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Lord Foulkes of Cumnock: My Lords, the noble Duke has raised a very important issue. I had indicated my intention to oppose Clause 30 stand part, and this is grouped with the noble Duke's amendments.
The noble Duke has raised one or two of the anomalies. My noble friend Lord Maxton intervened with another. I hope that the Minister will listen carefully to this because this whole issue is bristling with anomalies. There are all sorts of difficulties that could happen. When we got an informal briefing from the Minister and some of his staff, I raised the question of students-postgraduate and undergraduate students, researchers. There are all sorts of people who would be difficult to identify as Scottish taxpayers or not. There are diplomats and civil servants who move up and down regularly who might be difficult to identify. We have heard about people on the ferries and the sleepers. There are fishermen who could be classified in this way. There are all sorts of difficulties that arise.
There are some people in Scotland who may have a residence in England, Wales or Northern Ireland, but also a third residence overseas. How do the days resident overseas come into the calculation? This question was raised when we used to have residence qualifications for Peers' allowances and I recall that it created tremendous problems, which was one of the many reasons why we moved to the arrangement we now have. This is an absolute minefield of anomalies.
If the theory of the noble Lord, Lord Forsyth, is right-he has been arguing it very carefully-that Scotland is inevitably going to be a much more highly taxed area than England, imagine the situation that could arise on the border. The noble Lord, Lord Steel, might look at this; it might be a way of regenerating the borders. More and more people could live just over the border, living in England to pay English tax but coming into Scotland to take advantage of the better services in Scotland. There are all sorts of difficulties that could arise.
We were most grateful to the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Sassoon, for organising the seminar. I do not know about other people who went to it, but I came away with more questions at the end than I had at the beginning. Again, the noble Lord, Lord Forsyth, raised a lot of the questions in that seminar. In his reply, perhaps the noble Lord, Lord Sassoon, can tell us whether, following that seminar and the genuine points of concern that were raised, some further consideration has been given to trying to make a simpler system for identifying who Scottish taxpayers are. The arrangement in the Bill is far too complicated to implement effectively.
Lord Steel of Aikwood: The noble Lord, Lord Foulkes, may not know that there are already people living just south of the border who take advantage of the services in the borders. I refer particularly to people from the Berwick-upon-Tweed area who make good use of the Borders General Hospital because it is a very good facility. I have a simple question for the Minister. How does Section 80F operate? It is about the number of days that people spend in Scotland or the rest of the UK. If we do not have any border controls we do not know who is coming in and out. I am assuming that
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Lord Maxton: My Lords, quite properly everyone has been raising the issue of those people who live and work across borders, work on ships and trains, or are lorry drivers. My concern to some extent is those people-I could be one of them-who live in Scotland but whose sole income is a pension from the other place, and whose tax office is Cardiff and not East Kilbride or anywhere in Scotland. I am still not quite clear how that tax office will know that I am a resident in Scotland. As far as I know, it does not have to know my home address. I would accept that if this debate was back in the 1990s. Of course, technology has moved on and it may be that we now have a database that allows the Inland Revenue to know exactly where you live. I rather doubt whether it has ever bothered to update the records and keep them up to date. What happens to someone who lives in Scotland and should be paying tax in Scotland but whose sole source of income and tax office are outside Scotland? How does that person know what tax they should pay in Scotland?
The Duke of Montrose: I wonder whether the noble Lord remembers getting a demand for taxes from the Inland Revenue which, presumably, was sent to his house because it knows where his house is.
Lord Maxton: Oddly enough, I am in the unfortunate position at one level but fortunate in another that about five years ago, if not longer, I got my last letter from the Inland Revenue. It said, "Please do not send us any more tax returns because we know what your income is. It has been the same for the last 10 years so don't bother any more". If I moved house, I am not sure that anyone would know where I had gone. I assume that you have to tell the Inland Revenue but the fact is that there is this problem. As far as I am aware, PAYE is paid on the basis of where you are employed, who employs you and the income that you are paid. That can come from a variety of sources and is taxed at source. I am never quite clear whether one's residence is an important part of that issue.
Lord Campbell of Alloway: My Lords, I support what has been said by and large for this amendment in the name of my noble friend the Duke of Montrose. This is a highly complex problem and very difficult to understand. The question is whether it falls within devolution or not. It is understood that an arrangement has been made for members of the Privy Council to consider, if a question such as this arises, whether it is within or without the concept of devolution. This matter is so complicated that I am only grateful for having been able to listen to what was said about it. I hope that it may be satisfactorily resolved.
Lord Kilclooney: My Lords, the people of Northern Ireland are increasingly concerned that Scotland is heading towards a higher taxation system-be it devolution or potentially independence. There needs to be clarification to the people of Northern Ireland
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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,
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
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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
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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
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Lord Sassoon: I am grateful to the noble and learned Lord, Lord Davidson of Glen Clova, for his measured and reasonable approach. I think that I have had 57 varieties of questions and counting. Some of the questions are very technical and possibly do not go to the heart of the clause, but I will make sure that a letter sweeping up as many of the points as possible is written ahead of the Report stage so that all noble Lords have their queries addressed in good time.
There are one or two questions that I had anticipated which we did not get to, such as the tax position of Scottish astronauts. I am sure that we could have found one or two other cases. The serious starting point of all this is that, as the noble and learned Lord, Lord Davidson of Glen Clova, points out, there is huge complexity already in the UK system on residence matters. We do not want to add unnecessary complexity in this Bill. Quite a number of the issues that have been identified in this interesting discussion already arise under UK tests, and are not particular to Scotland. Others are very much issues particular to Scotland. I believe that they have all been given consideration, but I certainly do not pretend that any of this will be simple.
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The reason it is not simple is not mainly because of what has been done in this Bill. It is simply because UK residence considerations are themselves already very complex. That is why the Government consulted last year-this is relevant background to the consideration of these clauses-on the introduction of a statutory definition of residence, to provide greater certainty for taxpayers about their UK tax residence status. That issue goes to the heart of a number of questions and concerns. The Government will legislate for that in the Finance Bill in 2013, and will help on all that flows from it, including the questions that we are discussing this afternoon.
Having briefly said that as a matter of background, I know that other noble Lords are bit confused about what we are debating. For clarification, I believe that I am speaking to Amendments 54ZA, 54BA, 54BB, 54FA and 54FB, and whether Clauses 30, 31 and 32 should stand part of the Bill. I proceed on that basis.
We start with a complex position in the UK; there is no denying that. The new Scottish rate of income tax sits within that framework. We want to ensure that taxpayers' businesses and employers across the UK can operate the rates that apply to Scottish taxpayers as simply and effectively as possible. Of course, some of these professional bodies are there to look for these really difficult cases and point them out. We will take them on board, if we have not already, in all the technical notes. The key thing is that we want to keep the overriding tests as simple as possible.
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Clause 30 sets out the definition of a Scottish taxpayer. A Scottish taxpayer will meet two tests in a tax year. The first is that the individual is UK-resident for tax purposes. The second is whether the individual meets any one of three conditions, A, B or C. Where they meet any one of these conditions, they can simply disregard the remainder.
In answer to one overriding question which came from my noble friend Lord Steel of Aikwood, in applying these tests, as in so much that relates to taxpayers and their income tax returns, we of course rely on the basic honesty and decency of the British people to declare their tax affairs honestly. We want to make it as simple as possible, but we rely on their honesty, backed up of course by a whole range of penalties and HMRC being vigilant in looking for those who may not be declaring their affairs honestly. The overwhelming majority of the population declares things properly, but we need to keep it as simple as we can. Condition A is that the individual has a close connection with Scotland. That is defined in new Section 80E. If they have one place of residence in the UK and that place of residence is in Scotland, they will have a close connection with Scotland and will be a Scottish taxpayer, provided that they live there for at least a part of the year. That will be, I suggest, a straightforward test for the great majority of people. If someone has two or more places of residence in the UK, whether or not they have a close connection with Scotland will depend on whether their main place of residence is located in Scotland for at least as much time as somewhere else in the UK-again, provided that the place of residence is where they live.
Condition B applies to those people who cannot identify a main place of residence. Someone who cannot determine with which part of the UK they have a close connection will need to count the number of days they spend in Scotland compared to the number of days they spend elsewhere in the UK. If they spend more days in Scotland than they do elsewhere in the UK, they will be a Scottish taxpayer. The number of people within this category-having to count the number of days-should be relatively few. I will come back to some of the instances that have been raised in this debate, where that is relevant. Finally, if someone represents a Scottish constituency in the Scottish, UK or European parliaments for any part of the year, they will meet condition C and be a Scottish taxpayer for that tax year, provided that they are UK residents.
I suggest that we have made the starting position to the basic overlay to what is a complex UK test as simple as we can. However, my noble friend the Duke of Montrose has tabled some amendments relating to the definition of a Scottish taxpayer and brings up some important issues. Amendments 54ZA, 54BA, 54BB and 54FA seek to remove condition A of the definition. This would mean that all taxpayers who think that they may be Scottish taxpayers would need to apply condition B and, as a result, count the numbers of days spent in Scotland compared to the rest of the UK. As I have explained, we recognise that the need to keep a record of where one has spent days in Scotland and the rest of the UK adds a degree of complexity
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My noble friend's amendments would mean that individuals such as lorry drivers, those who undertake shift work and those operating on the trains-an example that has been raised-on one side of the England/Scotland border but living on the other would, despite in all probability having very simple tax affairs, nevertheless need to keep a record of days spent in Scotland. We have designed a definition that will be straightforward for the majority of people to operate, and I do not believe that we should change that approach of simplicity.
My noble friend has also tabled Amendment 54FB, which would seek to define what is meant by "a day" for these purposes. Under this definition, "a day" would be a period of 24 hours terminating at midnight. We have deliberately not included a definition of "a day" in the Bill, in order to keep in line with the way in which the UK residence test currently operates. This relies on where one is "at the end of the day"; again, this would apply to a number of the cases that we have heard about. The phrase "at the end of the day" is used elsewhere in tax legislation. It is well understood by taxpayers and their advisers where it is relevant. Introducing a different statutory definition for the purposes of this Bill, I suggest, risks heaping confusion on something that starts off being perhaps not that simple. This is one of a number of areas in which we should not attempt to use the vehicle of this Bill to rewrite major areas of UK tax law, which are, as I have said in the case of residence, already the subject of major work. I take the general point made by the noble and learned Lord, Lord Davidson of Glen Clova, that we must think continually of simplification opportunities. The Government set up the Office of Tax Simplification with that very much in mind. It may help him to know that the tax director of the Office of Tax Simplification is sitting on the technical group that is looking at all the issues that arise out of this Bill, so there is a connection through the person of Mr John Whiting to the group that thinks about tax simplification measures.
Having said that I will write to noble Lords, I do not want to duck a number of the very important points that have been made. Even though my noble friend Lord Forsyth of Drumlean came in at the end, he asked one of the questions that go to the heart of this clause, as opposed to others which were technical, detailed and of a slightly different order. My noble friend asked simply what was wrong with the definition used for the Scottish variable rate in the 1998 Act. Under the 1998 Act, an individual had to consider a number of tests to determine whether they were a Scottish taxpayer. This could have led to people with otherwise straightforward affairs having to count the days that they spent in Scotland, which comes back to the issue at the heart of the concerns of my noble friends the Duke of Montrose and Lord Lyell. We are trying to help very large numbers of people avoid having to count on a daily basis as they drive their lorries, or whatever else they may do, by keeping to a much simpler definition than was in the 1998 Act
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I understand from a number of questions that the position of oil-rig workers and others who work on the seas is of particular concern. For those who work offshore, whether on an oil rig or any other offshore base, it is very unlikely that that base will constitute their main place of residence, even though they stay there for long periods. That being the case, any day spent offshore will be disregarded when applying the definition of a Scottish taxpayer. Instead, whether they meet the definition will be determined by the location of their sole or main place of residence within the UK. Similarly, with mobile workers within the UK, the critical factor will be the location of their main place of residence. I of course appreciate that there will be difficult individual cases, but I submit that the vast majority of them already arise under existing UK rules.
The noble Lord, Lord Maxton, asked whether the PAYE system would be based on where you work. The PAYE system is based on the tax code, so those identified as Scottish taxpayers will receive a tax code with an "S" prefix which employers will operate. Again, it will all go back to whether you are defined as being a Scottish taxpayer rather than other questions of where the income is coming from.
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The noble Lord, Lord Foulkes of Cumnock, raised questions about civil servants, judges and others-we may come to some of these categories in other amendments. Again, movement across the border is not the key issue; it all comes back again to where your main place of residence is, as it does in answer to so many of the other questions. The noble Lord, Lord Maxton, asked about living in Scotland and getting income from elsewhere. Again, the main place of residence will be the driver. Residence overseas is a slightly different question, because the overriding test is whether an individual is resident in the UK for tax purposes-that was another point raised by the noble Lord, Lord Foulkes of Cumnock. Unless you are a UK resident for tax purposes, the simple overlay of whether you are defined as being a Scottish taxpayer does not arise; you have first to be resident in the UK.
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 O'Neill of Clackmannan: The Minister has not addressed the interface of tax and benefit. Tax credits perhaps give rise to some of the most complicated
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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
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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
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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.
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This has been a key debate on the heart of the Bill. We have a complex system of residence tests in the UK already. We are working with the possibility of a statutory residence test to make that simpler. Our watchword in this Bill is to introduce something that is as simple as possible for the majority of Scottish taxpayers as an overlay to the UK rules. That is why among other things the rather more complex approach in the 1998 Act is proposed to be superseded. It is all coming back to the main purpose of this to enable Holyrood directly to affect the level of its own income in a clear way that makes it accountable for the future Scottish budget and makes it dependent on the performance of the Scottish economy and policy decisions. These are the clauses that provide for the greater financial accountability of the Scottish Parliament to its electorate, with a real stake in Scottish economic performance, as a significant proportion of the budget for its public services will come directly from taxes set and raised in Scotland.
On the basis of the explanations that I have given the Committee, I ask my noble friend the Duke of Montrose if he would consider withdrawing his amendment.
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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 Sassoon: I am very happy to give that confirmation and will write.
Lord Gilbert: I distinctly heard a few minutes ago the noble Lord, Lord Forsyth, refer to bogus companies. This is a new concept to me, but the phrase did not seem to throw the Minister at all. Will he tell us what he thought the noble Lord referred to when he mentioned bogus companies?
Lord Sassoon: My Lords, if the noble Lord had heard the richness of this debate he might have understood the context in which all this was raised. I was pointing out that quite a lot of what my noble friend raised, if it relates to bogus companies and other things, will already be under the microscope of HMRC, which will deal with it as part of its normal UK responsibilities.
Lord Lyell: I commend my noble friend and express my enormous gratitude for the huge patience he has shown. He has promised to write to me, but could he please also ask his colleagues to look at col. 250 of our Second Reading debate on 6 September of last year? If he and his colleagues are able to look at it they will find that it is very much at variance with everything that he has said, and with what his colleague down the corridor has said, about lorry drivers. They said that there would be "very few" of those drivers. However, 360 of them drove for this company, as the noble and learned Lord knows well, because it is eight miles from his home and one mile from mine in Kirriemuir. Of those 360 drivers, they had identified 26 straight off as
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Lord Sassoon: My Lords, I will of course have a look at it again.
The Duke of Montrose: My Lords, this has been a very far-reaching and complicated debate and I must thank all those who participated in it. I must also apologise to your Lordships for starting off in such a rushed manner. I had gone out of the Chamber to see if I could find out what on earth the order was that we were trying to follow. Outside, I could find no evidence of what the order was, which was what brought me back in again-luckily, I was just in time.
Most of my amendments in this group were consequential with the exception of the last one, Amendment 54FB, which the Minister very kindly answered even though I had not spoken to it. It was about the definition of a day. The idea of saying that a day,
was to couple it on to subsection (1)(a) of proposed new Section 80F, which refers to,
The Minister seems perfectly happy to leave this as a vague definition, but to some of us it is hard to know whether,
is the end of the working day or when you finally get home for your supper, or when you go to bed. Apparently in tax terms it is perfectly natural and normal to leave it completely undefined, which is certainly an interesting explanation.
I was interested when the noble and learned Lord, Lord Davidson of Glen Clova, raised the definition of a residence. It is reassuring to hear that the Government are already on to the case and are hoping to define a residence in statute. Although that is obviously a little further down the line, it will presumably be in place before the measures of this Bill come into effect. There is still the question of how HMRC will have a way of determining the total number of days that somebody has spent in Scotland for those who require this definition, in order to know whether they are taxpayers. I thought that the Minister was not quite correct to say that the object was to simplify the definition, because what I presented in my amendments is by far the simplest form of definition. The Minister seems to think-he might be right; I could not say until I look into it some more-that by bringing out a slightly more complicated definition he is making it simpler in application, which perhaps has much to recommend it.
The noble Lord said that nobody had raised the question of what would happen to Scots who were astronauts. However, if the Scottish Government start
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The Deputy Chairman of Committees (Lord Geddes): Given the remarks of the noble Duke, it may be of assistance to the Committee if I explain where we are regarding grouping and degrouping. To the best of my knowledge, the following amendments will be addressed separately: Amendments 54A, 54B, 54C and 54D. Amendment 54E will be grouped with Amendment 54A, and Amendments 54F, 54G, 54H and 54J will be dealt with separately. I trust that that is correct.
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.
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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.
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Lord Browne of Ladyton: It would be helpful if the noble Lord could clarify the following matter. If in any set of circumstances a serving member of the Armed Forces who is ordered to serve and live in Scotland is thereby made liable to a higher rate of income tax, will the service of which he is a member compensate him for that difference?
Lord Lyell: Before my noble friend replies on that point, perhaps I may say that I also had it in mind. Indeed, 18 miles from my home, and not far from the place of birth of my noble friend Lord Forsyth, is 45 Commando at Arbroath. I took the trouble to ring the electoral office in Angus. I was told that servicemen can vote in Westminster general elections-not Scottish elections-when they nominate their place of residence. Is my noble friend saying that the Government have consulted him, the Treasury and the Scottish Government and are laying down a new law whereby servicemen will be taxable even though they cannot vote in Scotland? Of course, the Scottish Government would like to get more tax from servicemen, even if the latter are not getting a vote there. Will my noble friend please check that?
Lord Sassoon: My Lords, in answer to the first question, there are lots of situations where employers may move people around as a requirement of their employment contract. That is not by any means confined to the Ministry of Defence. People in a number of professions and occupations are moved around from one tax jurisdiction to another. Differential tax rates comprise a factor that needs to be taken into account in the total benefit package. The Armed Forces build that into the packages of servicemen working here or elsewhere.
As regards voting, I am getting into difficult philosophical discussions concerning tax without representation that could keep us going deep into the
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In answer to the question from the noble Lord, Lord Browne of Ladyton, I have made the general point that employers need to consider total packages. However, I can give him specific reassurance that in the event that Scottish and UK rates differ at any point in the future, the Ministry of Defence will do what I suggested any employer has to do, which is to explore options to mitigate the effects of different rates of tax by using processes which are currently used for personnel serving abroad. I am glad to confirm that it will do what I rather expected it would.
Lord Kilclooney: My Lords, as I said earlier, there is a general impression in Northern Ireland that as Scotland moves towards greater devolution, perhaps even independence, there will be a higher level of taxation in Scotland than in the rest of the United Kingdom. That is the fear in Northern Ireland, because we have particularly close connections with Scotland, and we do not like the idea of paying more tax. Many people from Northern Ireland are in Scottish regiments and are based in Scotland. Are they going to have to pay higher taxation because they are in Scottish regiments, or, because their homes are still in Northern Ireland, will they still be paying United Kingdom taxation?
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,
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
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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
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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 West of Spithead: My Lords, I apologise to the House because I have not been here for the whole debate. Indeed, I only came in because I suddenly became aware of this point. This is an issue that could easily be resolved, but the position we have got ourselves into stands against reason. It will not go down well with people. Perhaps the Government could take it away to think about it. If it gets someone like me dragged out of my office when I am working because I suddenly become aware of it, my goodness, I can tell noble Lords what effect it will have on the military across the board. I beg the Minister to think about making some concessions along the lines suggested by the noble Lord, Lord Forsyth.
Lord Kilclooney: My Lords, I come back to the position in Northern Ireland. It is all very well to say that if there are higher taxes in Scotland, a serviceman serving in a Scottish regiment in Northern Ireland, who at the moment pays a standard United Kingdom tax rate, will be judged as living in the place with which he is most closely identified. It should be remembered that many soldiers stationed in Scotland do not like to register their address in Northern Ireland for obvious security reasons. Therefore, they could well be looked on as being Scottish taxpayers and have to pay the higher taxation that we fear will apply in Scotland.
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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
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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.
Lord Sewel: My Lords, I think we all appreciate that the Minister cannot go further today than he has gone. However, we have Report stage. Is he prepared to come forward with something more specific on Report-or does that remain at least a possibility?
Lord Sassoon: I am not sure what it is that the noble Lord wants me to come forward with. There are two things here: the basic test, where the Government's position is that the close-connection test should apply; and the question of what the compensation arrangements might be in the hypothetical circumstances, which are quite possible, of a higher rate of Scottish tax being imposed. I cannot give a commitment to come back with anything more on either point, although I am taken in particular with the very practical points that might arise if, for example, there are security reasons for not disclosing the address of a main residence. These are the sorts of important and practical issues that need to be taken account of in the guidance which serving personnel clearly need to be given, as and when they have to apply the test.
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
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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.
54B: Clause 30, page 23, line 10, at end insert-
"(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
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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: My Lords, my noble friend's amendment would introduce the concept of split-year treatment for those who move between the UK and Scotland during the tax year. I quite accept that a more accurate split of tax payments based on the time an individual spends in Scotland and the rest of the UK might in theory be desirable, but it would add very considerable cost and complexity to the system. As I took pains to point out in the previous discussion, in the Bill, we have been trying to keep the overlay of the application of the Scottish rate as simple as possible. My noble friend continually postulates circumstances in which there is a higher rate of income tax in Scotland and he puts the case of somebody who is disadvantaged by spending a relatively small amount of the year in Scotland but being caught by the definition for the whole year. I could equally well give cases that might apply the other way round. I accept that, in theory, the system should more closely be related to the amount of time an individual actually spends in Scotland. Theoretically, one cannot argue about that, but it would introduce cost and complexity into the system without the advantage or disadvantage going in one particular direction. What should rule here when we come to the practical application-
Lord Myners: I listened carefully to the Minister's response to the previous amendment and to this amendment. I see a policy unravelling here. I see the
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Lord Sassoon: First, if the noble Lord, Lord Myners, had actually been here for the substantive discussion of the enabling clauses of the Scottish income tax rates, he would know we discussed residency questions at length, including people who are part resident here or overseas. I think he has come in for the wrong part of the Bill, but I appreciate that he is a very busy man. We are sorry that we did not have him enrich the debate. We are sorry that he did not come and discuss the clauses where the basic residence test was-
Lord Myners: That is language of asperity. If the Minister does not withdraw, I will move a Motion that the House vote on that. I have made a perfectly reasonable contribution. We are in Committee, so I am perfectly entitled to do that. The fact that the Minister is struggling to answer the question is not a justification for personal rudeness and language of asperity, on which the rules of the House are very clear.
Lord Foulkes of Cumnock: I was here for the paving debate and the Minister did not deal with the specific point that my noble friend Lord Myners has just raised.
Lord Sassoon: This is all very good theatre, but we discussed the basic question of UK residence earlier this afternoon. As I said, I am very sorry that the noble Lord, Lord Myners, was not able to be here to enrich that discussion, but that it not what we are talking about in this debate. We are talking about different matters, which are important and the ones that we should concentrate on.
Lord Myners: I am sorry, but I have asked the Minister a very simple question. He has told us that for practical reasons it is not possible to accept this amendment. I am arguing that exactly the same practical issues arise with non-domiciles and it is possible for them to change their status more than once in a year. Can the Minister explain what practical reason frustrates the amendment moved by the noble Lord, Lord Forsyth, but permits non-domiciles to do this? It is a very simple question.
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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
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Lord Forsyth of Drumlean: My Lords-
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
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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
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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 Sewel: Not in the way the present lot are trying to define it.
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.
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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.
Amendments 54BA and 54BB not moved.
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.
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I deplore the principle of having special rules for tax purposes for elected politicians. That is a very bad precedent. My noble friend may say, "Oh, we have put it in here because we were worried that there might be a row over some Member of Parliament or Member of the European Parliament". However, there is an important principle here. We should not have tax legislation that gives Members of Parliament special privileges-although in this case, I have to say, I think that it probably gives them a larger tax bill. I do not know whether, in line with the commitment that my noble friend gave on behalf of the MoD, Members of Parliament will also have their salaries increased to compensate for the fact that they are subject to Scottish income tax. That would be quite a deplorable thing to happen, but it helps to illustrate my point as to why they have been included. It seems quite wrong that they should. The
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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 Foulkes of Cumnock: However, will the Minister confirm that not all Members of this Parliament are treated as British taxpayers and are not resident in Britain for the purposes of tax?
Lord Sassoon: My Lords, I would like to keep this debate to discussion about Scottish taxpayers. As my noble friend has already said, discussion about the status of Members of this House is something of a diversion whose relevance to this clause I do not see.
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Lord Foulkes of Cumnock: With respect, throughout the previous debate, the Minister said that the definition of Scottish residents and Scottish taxpayers was based on British residence. He had used the British example as the template in coming to a conclusion in relation to Scottish residents and Scottish taxpayers, so this matter must be relevant.
Lord Sassoon: Forgive me, my Lords, I thought that we were straying into questions about tax status and Members of this House. We are talking about Members of another place with a constituency in Parliament, Members of the European Parliament and Members of the Scottish Parliament. Most Scottish parliamentarians will already meet conditions A and B in new Section 80D, but there may be circumstances where this may not apply. For example, a Member may have gained or lost a seat at a recent election-it could have happened when an election was held early in the tax year-and decided to move elsewhere in the UK. The test here is that there should be clarity. If the person has been a Member of one of these Parliaments for a Scottish seat for some part of the year and has chosen to be so, they should be Scottish taxpayers for the year, but I appreciate that, depending on whether they come in or go out at different points of the year, the situation could be different. However, this is consistent with what I have been saying today: that the basic test is a close-connection test and that it should be simple and clear. Members of both Houses of the UK Parliament are deemed to be UK-resident for tax purposes if they are a Member for any part of the tax year. If the noble Lord, Lord Foulkes, wants to draw a parallel between the two Houses of this Parliament and what we are applying through the Bill as it stands, I say to him that the situation would be entirely lined up. If you are a Member of either House of the UK Parliament for any part of the year, you are deemed to be UK-resident for tax purposes. That is completely consistent with what is proposed in the Bill for Members who sit for Scottish constituencies. That is how the Bill should stand.
Lord Steel of Aikwood: My Lords, I suspect that there is nobody listed in the category in the Bill who does not live in Scotland, but the Minister is right in one respect: it was not always so. My predecessor as MP for Roxburgh, Selkirk and Peebles lived in London-I do not say that critically; that was a fact. He did not come from Scotland but he had a Scottish constituency. He came to visit the constituency dutifully from time to time, but he certainly would not have been regarded as having a close connection with Scotland, nor would he have spent the majority of days in Scotland. So, although I cannot think of anyone who would be excluded by taking this out, as my noble friend Lord Forsyth suggests, it could happen.
It reminds me of a story that Jo Grimond used to tell about coming across one of the knights of the shires at King's Cross station at the start of the Summer Recess. He was putting his trunk into the guard's van on the train and he was in a very bad mood. Jo Grimond said to him, "Why are you so upset?". He said, "It is not the thought that I am going to my constituency; it is the thought that I shall have to go
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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.
54D: Clause 30, page 23, line 21, at end insert-
"(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
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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.
4.45 pm
Lord Kerr of Kinlochard: My Lords, I follow exactly what the noble Lord, Lord Forsyth, is doing but it gets worse and worse. The best answer would be to remove these special categories altogether. Other countries have gone down the road of having special treatment for the public sector nomenklatura and singling it out in legislation. It is not a good road to go down.
Lord Davidson of Glen Clova: My Lords, might I also perhaps encourage the noble Lord, Lord Forsyth of Drumlean, to consider the position of judges. One of the great strengths of the United Kingdom is that Scotland has access to the whole Supreme Court, and therefore some of the finest minds and judiciary in the world. All those members of the Supreme Court have responsibilities for Scotland and it would perhaps be unfortunate if all 12 members of the court were to suddenly find themselves subject to the Scottish rate of income tax. I know he is looking for suggestions for his list, but possibly that one should be removed.
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.
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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.
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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.
54F: Clause 30, page 23, line 22, at end insert-
"(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.
Amendments 54FA and 54FB not moved.
54G: Clause 30, page 24, line 33, at end insert-
"(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
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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
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5 pm
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.
54J: Clause 30, page 24, line 36, at end insert-
"(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.
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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
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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?
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