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Scotland Bill

Volume 736: debated on Thursday 15 March 2012

Committee (4th Day)

Relevant documents: 17th Report from the Delegated Powers Committee, 17th Report from the Constitution Committee.

Moved By

My Lords, before continuing the Committee stage of the Bill, I should like to ask my noble and learned friend for some information about the progress that has been made on securing the legislative consent of the Scottish Parliament.

I should also like once again to complain about the fact that this Scotland Bill is being considered on a Thursday, when Members of this House who live in Scotland generally travel north. This matter has been raised previously. When I have raised it with my colleagues, I have been told that the Opposition have requested it. It is deeply inconvenient. I know that a number of colleagues have been unable to participate as a result.

I should also like to complain also about the time which has been made available for consideration of the amendments. All the amendments that I have tabled, and I have quite a number, relate to matters which were not considered in the House of Commons. All of them raise relatively serious points. I read on the groupings list that we will sit until the business is completed. I have plenty of stamina, but I would suggest that debating these matters relating to Scotland—we will of course try to expedite them—late on a Thursday evening is very unsatisfactory, especially when we are talking about an important constitutional Bill many of whose issues were not addressed in the other place where the Bill was subject to the usual guillotine procedure.

I return to the main point on which I feel the Committee should be advised, which is where we have got to on the question of the legislative consent Motion from the Scottish Parliament. This is important. Throughout the proceedings in relation to the introduction of new taxes in Scotland, my honourable friend David Gauke, the Treasury Minister, rested on the fact that a legislative consent Motion for the Bill had been passed by the Scottish Parliament, saying that,

“any future devolution must happen with the wholehearted consent of the Scottish Parliament”.—[Official Report, Commons, 14/3/11; col. 70.]

All the consideration of the Bill by the other place was on the basis that it had the support of the Scottish Parliament, but that is no longer the case.

There was a legislative consent Motion passed by the Scottish Parliament in March 2001. That is the legislative consent Motion which was noted on the Bill’s formal entry to this House. Indeed, the Explanatory Notes to the Bill state at paragraph 8:

“A further Legislative Consent Motion on additional amendments will be debated later in the legislative process”.

That referred to amendments to the Bill after consent by the Scottish Parliament. Since then, there has been an election in Scotland and there is a new Administration led by Mr Salmond. The committee of the Scottish Parliament, meeting on 13 December 2011, which was a year and one month after the First Reading of the Bill in the House of Commons, was unable to recommend that the Parliament pass a legislative consent Motion on the Bill until the Bill had been amended in line with the committee’s recommendations. It is of course for Mr Alex Salmond to table a Motion for legislative consent, which he has consistently refused to do.

I think I am entitled to ask my noble and learned friend what is going on here. The other place considers the Bill on the basis of a legislative consent Motion which no longer applies, with a Minister saying that we could not do this without the consent of the Scottish Parliament; at an earlier stage of the Bill, we were assured that negotiations were continuing with the Scottish Parliament and that Ministers had every confidence that they would have legislative consent; and now, today, we are about to embark on considering bringing in revolutionary tax powers for the Scottish Parliament and we still do not know whether we have a legislative consent Motion. What is the status of this and what is the Government’s position? Is the Government’s position as David Gauke told the other place, that any future devolution must happen with the wholehearted consent of the Scottish Parliament, and why are we taking so much time, with the House apparently being prepared to sit until the early hours of the morning if necessary, to deal with a Bill which may not meet the requirements of Alex Salmond and the Scottish Parliament?

I wonder whether I might add a few words at the risk of being classified yet again as one of the terrible toxic twins along with the noble Lord, Lord Forsyth.

Perhaps I may interrupt the noble Lord. We are speaking on a Motion to go into Committee. Unless the noble Lord has a very different point to make from that of my noble friend, who put it very well, why do we not allow the Minister to respond to that, and then put the Question, go into Committee and deal with the amendments in the normal way? I got the impression from the noble Lord’s first sentence that he was not making a new point but simply supporting my noble friend.

If the noble Lord waited a little longer, he might find out exactly what I was going to say. It is always a good idea to sit and listen, rather than anticipate what someone is going to say and jump up. I used to represent the Leader of the House. I looked after his interests. I made sure that, as a resident of Mauchline, he was well looked after. I hope that he will give me some respect for having looked after his interests for 26 years, a not inconsiderable period of time, and allow me to speak.

I want to add to what the noble Lord, Lord Forsyth, has said. I agree with him in relation to sitting on a Thursday, which is another mischief that seems to have been done. I also want to raise something which the noble Lord, Lord Forsyth, did not raise; that is, the lack of time between Committee stage and Report stage. We have only one weekend between the two. How are we going to be able properly to formulate amendments between Committee stage and Report stage? I am also concerned about the fact that the second day of the Report stage is 28 March. This time, instead of choosing a Thursday, the Government have chosen the day before we go into Recess. It is rather like after the Lord Mayor’s procession when the dust cart comes along to clean up—we are being treated as an afterthought.

The most serious issue concerns the sequence of events for dealing with this legislation as between here and the Scottish Parliament. We are rushing it through and dealing with it quickly in Committee—we shall deal with it even more speedily on Report—and yet the Scotland Bill Committee reported on 13 December 2011 and that report has not even appeared on the agenda of the Scottish Parliament. When will it appear? I have been led to believe that the Government may have had some indication that there will be a legislative consent Motion. The Minister should tell us whether that legislative consent Motion is going to be tabled. If the Government know about it, if they have been given any informal indication that it is going to be tabled, we need to know that. It is ridiculous that we should be left in the dark. My noble friend Lord Barnett was left in the dark on a whole range of issues earlier and I have complete sympathy with him. This seems to happen an awful lot.

I hope the Leader of the House will give the House a little more information and allow it an opportunity and a little more time to discuss matters instead of things being done by a little clique behind the scenes.

The noble Lord, Lord Forsyth, has raised the issue of the legislative consent Motion and my noble friend Lord Foulkes has raised the issue of the timetable. We have also had within the process a consultation which concluded at the end of last week. At Second Reading we were told that one of the reasons for the truncated consultation process was to allow amendments to be brought forward at Report stage. However, there is a very short period of time between the Committee stage and the Report stage. I echo the points made by the noble Lord, Lord Forsyth, and my noble friend Lord Foulkes about this debate taking place on a Thursday and the final day of the Report stage taking place on the Wednesday before the Easter Recess

The whole process is in a muddle, and that is not the way to deal with a serious constitutional issue. I have the greatest respect for the noble and learned Lord, Lord Wallace of Tankerness, and I know that he would wish to be as straightforward with the House as he can be. I hope, too, that the Leader of the House, as the leader of the whole House, will not see this as some source of mischief but as an attempt to get to the bottom of what is happening.

My Lords, it is with some reluctance that I rise to speak but I think that my contribution will substantially meet the criteria that the Leader of the House has laid down for this debate.

I addressed the House at some length on the first day in Committee setting out the reasons why I thought it was important that we should conclude our scrutiny of the Bill and present it back to the other place ready to become legislation. That was on 26 January and I do not intend to repeat all the points I made on that occasion. Those who are interested can read for themselves that 45 minute contribution in the Official Report. However, I do wish to make one or two important points.

First, I rebut the suggestion that we are meeting on this Thursday to discuss this part of the Bill at the request of this part of the Opposition. I cannot speak for all of the Opposition, of course, but I have been privy to many conversations, getting uncomfortably close to the usual channels in your Lordships’ House, and never at any time in these discussions did I ask, or was I party to a request from the Opposition, that we should meet on a Thursday.

Noble Lords ought to remind themselves of the somewhat chequered history of the management of the Committee stage in this House. It was the great plan that this day would be devoted to a debate about referendums. It was broadly agreed because the consultation would be over and it was expected that the Government would be able to come to the Dispatch Box and indicate what their response to the consultation would be. There was a degree of consensus that went beyond the Front Benches that it was appropriate to handle the matter in that fashion. However, as has consistently happened with the Committee days of the Bill, we have been subject to other items of business being imposed on them. We have just had the same thing today. In fact, we lost a whole Committee day for this Bill because it was seized from us for ping- pong on the Welfare Reform Bill. I was assured that that would take only a couple of hours—at the time I laughed uproariously at that idea—but it took all day and we lost a whole day in Committee.

There was an attempt, to which I was a party, by those who want to see this matter proceed appropriately to manage the business in such a way that we would conclude it within the appropriate time. However, there was no agreement that we would sit on Thursdays. A lot of what has happened has been imposed on me and other Members of the House by the circumstances of the business of the House. I understand that it has to be managed and I do not want to be part of that process, but any suggestion that the Opposition requested Thursdays is not correct to my knowledge.

I shall savour that apology. I am grateful to the noble Lord for his gracious apology. I shall bank it away because we may get to a point during the course of today when I will need it in order to bargain for others.

I am as interested as any Member of the House in where the discussions between the Government and the Scottish Government are in relation to the legislative consent Motion. However, I have been consistently of the opinion that the Scottish Parliament will pass a legislative consent Motion in relation to this Bill. I am also consistently of the view that we have promised the Scottish people that we will deliver the Bill in such a way that it can be enacted by a legislative consent Motion effectively and that we should keep our word to the Scottish people and to the Scottish political classes.

My Lords, picking up on the final point made by the noble Lord, Lord Browne, there was a commitment in the manifestos of all three parties—the Conservative Party, the Labour Party and the Liberal Democrats—at the last general election that we would seek to implement the Calman commission proposals, which this Bill substantially seeks to do.

On the issue of sitting days, I readily recognise the concerns. Indeed, I was told that the House would sit to debate the Scotland Bill on a Thursday and I have turned up today with my noble friend Lord Sassoon to respond to the amendments. The noble Lord, Lord Browne, indicated some of the issues that we have had to address. There was one day—Tuesday, 14 February—when, because of the time taken by the Welfare Reform Bill, we did not manage to debate anything. The decision was taken late in the day that it would not be proper to start our debates after 9.30 pm, and there was general agreement that that was the right decision. Our previous debate in Committee was on a Tuesday. Next week we will be in Committee on Wednesday.

On the point made by the noble Baroness, Lady Liddell, it was not on Second Reading but when we moved into Committee in January that the Government announced, as a result of representations they had received, quite properly, from my noble friend Lord Forsyth, that there would be a consultation. There were amendments on the Marshalled List to the effect that we would not deal with referendums until after the consultation period had closed. I indicated at the time that we would hope to deal with them in the week beginning 12 March, and today was originally identified as the date for doing so. However, as has been indicated, as we lost a day because of the ping-pong on the Welfare Reform Bill, we were not able to make as much progress on the last occasion as we had hoped. These debates will now take place next Wednesday, when there will be an opportunity to address the issues around referendums.

It is perfectly reasonable for my noble friend to ask where we have got to with the legislative consent Motion. A Motion was passed in the Scottish Parliament in March last year, which I suspect is the one that our honourable friend Mr Gauke was talking about. I have no doubt that the noble Lord, Lord Foulkes, voted for it, as he was still a Member of the Scottish Parliament at the time. It is also worth pointing out that on the final vote, Mr Alex Salmond voted for it, too, as did many people who are currently members of the Scottish Government. That legislative consent Motion stands until any subsequent Motion is tabled that updates it.

The Government intend to secure a legislative consent Motion from the Scottish Parliament in favour of the Bill—

My noble and learned friend says that the legislative consent Motion stands. However, will he deal with the view of the committee—which is the latest consideration by the new Parliament, where there is now an SNP majority rather than a minority—that it was unable to recommend that the Parliament pass a further legislative consent Motion on the Bill until it had been amended in line with the committee’s recommendations? As we discussed before, there are 45 recommendations, which effectively deliver devo-max.

That is perfectly fair and I will come on to address that. I was simply making the observation that there is, currently, an outstanding legislative consent Motion, which was actually supported by many members of the current Scottish Government. It is certainly our intention that we should have a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and I and my ministerial colleagues have been working very hard to secure the support of the Scottish Parliament for such a Motion. I am sure the Scottish Government would acknowledge the same.

We have been working together to consider and to assess the request for amendments to the Bill. It would be wrong to speculate on the outcome of the work being undertaken with the Scottish Government, but the key point is that I can assure the House that we are working hard to ensure that the Scottish Parliament will vote in favour of a legislative consent Motion for the Bill. It would not be appropriate to get ahead of discussions between Ministers—as noble Lords have highlighted, it is for the Scottish Government to propose a legislative consent Motion and we must allow the interministerial discussions to continue and not get ahead of them. However, I know that my right honourable friend the Secretary of State had conversations yesterday with the Scottish Government. Indeed, before coming to your Lordships’ House today, I was engaged in discussions about moving forward, to get into a position where we can get an agreement.

The Sewel convention is about respecting the devolved areas for which the Scottish Parliament is accountable. It provides that the United Kingdom Parliament will not normally legislate on devolved matters without the Scottish Parliament’s consent. I believe we have gone further than with any other Bill in considering and taking on board the view of the Scottish Government and Parliament, and we will continue to work to reach agreement. The Secretary of State has made clear, in letters, phone calls and meetings with Scottish Government Ministers, that we will properly consider all their requests for changes to the Bill. I understand and readily recognise that noble Lords are keen to hear the outcome of the discussions with the Government, but I urge noble Lords to continue with their thorough scrutiny of the Bill, alongside our work to agree a legislative consent Motion. I hope that by the time we come to Report, it will have been possible to update your Lordships on the intergovernmental discussion.

It would be helpful to be updated at that stage and to set a target, in our plan, for an update to take place on the ministerial discussions. Given the upcoming recesses and the fact that the Bill will have to have Royal Assent before the final Dissolution of Parliament ahead of the Queen’s Speech, we do not have much time. It is important to plan the sequence of events. Can the Minister indicate what his target date is for the legislative consent Motion to go to the Scottish Parliament? Is it between Report and Third Reading, which would seem to be the logical time?

I agree with much of what the noble Lord says. He is right to point out that prorogation is sooner rather than later and that it is necessary to get Royal Assent before that. As has been acknowledged, it is not for United Kingdom government Ministers to table the legislative consent Motion, but the Scottish Government are well aware of the proposed timings and of the stages when any amendments would have to be laid so that your Lordships’ House would have adequate opportunity to discuss them.

Before I gave way to the noble Lord, I was about to indicate that I hoped it would be possible to update your Lordships before Report on intergovernmental discussions. It would not be helpful—and no doubt many of your Lordships present have engaged in such negotiations—for negotiations to take place by telegraphing from one parliamentary Chamber to another. That would be counterproductive. However, I reassure your Lordships that serious efforts are being made to reach agreement. Given the point made by my noble friend Lord Forsyth about the important issues we have to debate today, I hope we can agree to move into Committee so that we can get on and debate them.

Perhaps I may ask about a matter of significance to this Parliament. Will the Minister clarify whether there will be just five or six days between Committee and Report on the Bill? The noble Lord, Lord Strathclyde, is in his place, and he will know that the Leader’s report, which he commissioned, recommended very strongly that the minimum intervals between stages of Bills should be respected. As the House will remember, they were abused at the time of the Parliamentary Voting System and Constituencies Bill, and I would be troubled—as the House should be—if they are being abused again now.

My Lords, I hope that I can reassure the noble Lord, Lord Grocott, that this is not an abuse. The matter was agreed because we were meeting a legitimate concern and expectation, expressed by a number of your Lordships across the House, that we should defer some sittings of the Committee until such time as the United Kingdom Government’s consultation had concluded. That was welcomed at the time; and because of that, the timescales inevitably had to be short.

With respect to the Minister, all that was agreed was that the discussion of the referendum should be taken in Committee. There was never any discussion about Report across the Floor of the House.

There was an expectation across the Floor of the House that we should defer Committee discussion until the end of the consultation. It was agreed between the usual channels that if we did that, it would necessitate a shortened period between Committee and Report—if only for the obvious reason of being able to get to Royal Assent, as the noble Lord pointed out.

My Lords, I very respectfully remind my noble and learned friend that the Bill is before Parliament. In his remarks about legislative consent, he indicated that the Government might have to bring forward some amendments as a result of the negotiations that are being carried out by Ministers. Ministers cannot just presume the consent of Parliament. It strikes me as extremely odd that we should be half way through the Committee stage on a Bill that was introduced more than a year ago, and these negotiations are still continuing. I do not know if my noble friend is a fisherman. I am. If you want to land a salmon, you play it for a long time. In this case, the Salmond seems to be playing the Minister. He is deciding the timetable and what amendments may be put before us. We are being told that we can only consider them at the last minute, against a deadline. This is a ridiculous position for us to be in.

I have two specific questions for the Minister. Is he saying that, in the absence of a legislative consent Motion, the Bill will not go ahead? Or is he saying that he is in negotiation and will bring forward reasonable amendments, but that the Bill will go ahead? That is the crucial thing that he needs to tell the House now.

My Lords, there are a number of possible options if the legislative consent Motion is not forthcoming, but every effort is being made to achieve it. Obviously, my noble friend is absolutely right that anything in any amendment that is brought forward will be subject to Parliament. As we well know, it is quite proper and consistent with our procedures for your Lordships to vote on anything they wish to. It will be for Parliament to decide the final shape of the Bill.

My noble and learned friend said that Parliament will decide the final shape of the Bill, but there is a thing called a timetable. We know that the House will get up for the Queen’s Speech. We are against a time constraint, and if negotiations are continuing as the Bill proceeds, the opportunity for the House to do that will be limited. When my noble and learned friend says that a number of options are open to the Government in the absence of a legislative consent Motion, could he share them with the House? We are entitled to know whether the Bill that we are discussing will go ahead if we do not have a legislative consent Motion. That is a perfectly reasonable question, and the Minister cannot respond by saying that there are a number of options. There is only one option—yes or no.

That is two options, for a start, and a third option could be to pass it and park it. We are seeking to reach agreement, and my noble friend has repeated the truism that it will be for Parliament to determine the final shape of the Bill. If Parliament does not wish to agree, that may determine the reaction of the Scottish Parliament to a legislative consent Motion. But I emphasise that, as things stand, much effort is being made and considerable progress is also being made with regard to achieving a satisfactory outcome. As I said to the noble Lord, Lord Foulkes, we hope that we will be able to update your Lordships before the House considers the Bill on Report.

I apologise to my noble and learned friend for not being here when the debate started, but I was in a committee upstairs and may therefore have missed this point. If there are amendments as a result of further negotiations, will the House go back into Committee so that we can speak more than once on them?

The convention and the devolution guidance notes that update it state that we seek a legislative consent Motion before the last opportunity for amending. In your Lordships’ House, that would be Third Reading. Therefore, it was always anticipated that it would not be necessary to go back into Committee. I hope that after discussing the important point made by my noble friend Lord Forsyth we can go ahead and debate the important issues around the financial provisions in the Bill.

Motion agreed.

Clause 30 : Scottish rate of income tax

Amendment 53

Moved by

53: Clause 30, page 23, line 6, at end insert—

“(9) This section is subject to section (Referendum about Scottish rate of income tax).”

My Lords, this is an important amendment, which provides for a referendum if the sections of the Bill that introduce for the first time a Scottish income tax are enacted by the Scottish Parliament in such a way that Scottish taxpayers end up paying a higher rate of income tax than people in the rest of the United Kingdom.

I should point out that the order of consideration of amendments that has been circulated to the Members of the House is not actually the order that I have in front of me now. I do not know whether it is possible for further documentation to be provided so that we are all on the same page, as my amendments are now grouped with those from the noble Lord, Lord Foulkes.

The original provisions in the Scotland Act, which provided for a Scottish variable rate of income tax, gave the Scottish Parliament the power to raise income tax by 3p in the £1 on the basic rate alone. It did not apply to either of the other rates of income tax and was limited to 3p. As Secretary of State I well remember campaigning long and hard on the tartan tax, which is a much better name than the Scottish variable rate. The Bill seeks to abolish the 3p variable rate, although it was something that the Scottish Parliament voted for in a referendum. It was something that people campaigned for and against; it was subject to argument.

It seems extraordinary to get rid of something done by referendum without having a referendum to endorse that. I am no fan of the Scottish variable rate; I thought that having the power to set a higher rate of income tax in Scotland would result in great disadvantage to Scotland if it was ever used—and I am delighted to say that it never was used. Many people enjoy jobs and prosperity they would not otherwise have enjoyed had those powers been used, so I welcome the fact that the Bill abolishes the tartan tax and gets rid of the variable rate. This is great progress, but unfortunately it goes on to create a new power for the Scottish Parliament not just to set the basic rate of tax within a limit of 3p but to set any rate of tax that it chooses that will affect the basic and higher rates of income tax. That is a huge change, way beyond anything that was set out in the Scotland Act and way beyond what was put to the Scottish people in a referendum.

The amendment would give the Scottish people the right to decide whether these sweeping powers, which will inevitably make Scotland the highest-taxed part of the United Kingdom, are appropriate and desirable. In our consideration of the Bill at earlier stages, it has become apparent that in respect of many of the tax powers there is perhaps not widespread knowledge of this in this House or the other place. The extent to which people in Scotland are aware of the potential impact of the power is limited. I simply cite evidence the recent discussions in Scotland about more powers for the Scottish Parliament, which clearly show that many people advocating those powers do not realise that they are already in the Bill and, in some respects, beyond what they desire.

It is important, too, that this provision should be subject to a referendum not just on the principle that the previous Labour Administration, who took office in 1997, thought it appropriate to have a referendum but because so many of the details about the operation and implementation of the tax, and its extent and the scope, are not actually provided in the Bill. For example, as the Bill stands, people with income from savings or dividends will not pay the Scottish income tax, but people with income from pensions will. Why is that? How is that going to distort the relative desirability of pension and savings investments of a more conventional kind? The Bill does not give the Scottish Parliament the ability to change the thresholds for income tax purposes or the ability to increase the rates by differential amounts, so it would be impossible for the Scottish Parliament to set a higher rate of tax while keeping the basic rate at the same level. Why is that? Should those matters not be subject to debate and consideration?

The effect of implementing this power in the Bill would be that any higher income tax in Scotland would be a disproportionately heavy burden on the lowest paid compared with the highest paid, which strikes me as a rather extraordinary thing to do. Of course, in the Bill the amount of grant that is being reduced is the equivalent to 10p on income tax, which is a curious position. Why not have all the revenue from the income tax? Why have the 10p? These matters are being debated in Scotland now.

I hesitate to mention the late lamented poll tax, or community charge, but one of the problems with the poll tax was that it raised a relatively small part of local government revenue. The same was true of the rates, and therefore in order to make an increase in expenditure that fell for its burden upon the poll tax or the rates, you required a disproportionately large increase in the amount. One of the issues here is how this income tax power would operate. The Minister gave figures earlier in our deliberations and, as I understand them, 1p on income tax would raise £420 million. That is a relatively small sum when one thinks that the Scottish Parliament is having to reduce its funding by £3 billion to meet the deficit reduction requirements. Allowing for a reduction in yield, that is the equivalent of allowing for 8p on the basic rate of income tax. On my calculations, that is a 40 per cent increase, whereas 8p on the 50p rate of income tax would be a very much smaller percentage increase.

A number of issues about the operation of this income tax, both in its scope and in the limitations on the powers of the Scottish Parliament, have not been debated or considered at all in Scotland but ought to be, and almost certainly would be debated or considered if there was a requirement to have a referendum before these powers could be implemented. The most important thing about taxation—the very nature of the other place—is in ensuring that taxes are not levied without consent, and that those raising the taxes are subject to the accountability of the people. This is a huge change. It is not one that I welcome but I acknowledge that I am in a minority, in this House and in the other place, in forming that view.

The people of Scotland should have an opportunity to have an explanation of what is being suggested, and the chance to give their verdict on it. This amendment attempts to do that, and in doing so it merely reflects the view of all parties when they campaigned for devolution in the first place, which was that there should be a referendum on the tax-raising powers.

I wonder whether everyone in the House is absolutely clear, because I am slightly confused about it, that we have now degrouped from my amendments the amendments tabled by the noble Lord, Lord Forsyth, on the referendum on taxation powers, so we are just dealing with Amendments 53, 55, 56 and 57.

It is certainly my understanding, and I think it is the understanding of my noble friend, that the amendments tabled by the noble Lord, Lord Foulkes, Amendments 66 to 69 and Amendments 75, 76, 84 and 86, are now grouped with the amendments to which my noble friend has just spoken. We are at the moment trying to get a fresh piece of paper that sets them out. It is my understanding that they are on much the same subject.

We are very confused, because I got a draft that said that, but the paper from the government Whips’ Office with today’s lists for your Lordships’ House lists the Questions that were tabled, my noble friend Lord Barnett’s Motion and, as the main business, this Bill and the target for today. It then has the grouping for amendments. Everyone picked this up on the way in, and I have assumed that that is the basis on which we are debating.

I have the same problem. I have a revised list that I got from the Whips’ Office and it would be really helpful if the revised groupings could be made available. It is of course not for me to give the noble Lord advice. He can insist on degrouping his amendments, but as they are about referenda it would make sense for them to be grouped together.

I specifically asked in an e-mail, which got a response from the clerks’ office, for my amendments to be degrouped from those tabled by the noble Lord, Lord Forsyth. It is not that I want to be disassociated from him completely, but because although I have tabled the appropriate amendments to allow a referendum, the basis on which I will argue for that—and I hope to argue for it later, which is why I wanted to clarify this now—is entirely different from the basis on which the noble Lord, Lord Forsyth, is arguing for it. I actually want the Scottish Parliament to be given full fiscal responsibility and to have all these additional taxation powers, but only if they are approved by the Scottish people in a referendum. That is an entirely different basis of argument, and why I wanted it separated. Can I assume from the list that I have that we are dealing just with Amendments 53, 55, 56 and 57 now, and that my Amendments 66 to 69 will be dealt with after Amendment 65, tabled by my noble friend Lord Barnett? Is that agreed?

My Lords, I was delighted to see my noble friend Lord Attlee here, because I was about to follow some of his grandfather’s advice: that a period of silence from me had been welcome until now. Today, however, I shall break my duck regarding income, in strong support of my noble friend Lord Forsyth. This is a preliminary strike about dividend income and pensions income.

I am sure that my noble and learned friend will be able to give advice at an early stage, but on page 25 of the Bill we come to Clause 31, headed, “Income tax for Scottish taxpayers”. At lines 34 and 35 in Clause 31(3), new subsection (3C) refers to Section 16, which I presume to be that of the Income Tax Act 2007. It says that it,

“has effect for determining which part of a Scottish taxpayer’s income consists of savings income”.

As a non-practising member of the Institute of Chartered Accountants of Scotland, but very much as a consumer who takes advice, I seem to recall that until 10 years ago one’s income tax was classified as earned and unearned income. Indeed, my colleagues with whom I worked then have confirmed that. However, we now have this completely different concept of savings income, earned income and other income being applied to Scottish taxpayers. It would be different from any other United Kingdom definition of what savings income or other income will be. Perhaps my noble and learned friend will be able to take note of that and cover it at some stage. However, I support most strongly what my noble friend Lord Forsyth has said at this stage. I am happy to let your Lordships know that this will be the first of one or two efforts from the mouse that roared, as I call myself—that is, the accountant in the backwoods of Angus.

My Lords, my noble friend Lord Forsyth is suggesting that we need another referendum on the use of tax powers. It is my memory that, 12 years ago, the second question in the referendum was along the lines of, “This Parliament should/should not have tax-varying powers”. Do tax-varying powers not strike a lot wider than the Scottish variable rate, which was enacted? Consent has already been given for any form of variation in existing taxes.

My Lords, I refer to the earlier discussion about groupings. Do I take it that the authoritative groupings list that we are working to is the one that is still being distributed by the Printed Paper Office?

I hope I can be helpful. My understanding is that my noble friend Lord Forsyth has spoken to a grouping of Amendments 53, 55, 56 and 57. He indicates that that is right. If there is some confusion it is because it was thought that the amendments in the name of the noble Lord, Lord Foulkes, which start with Amendment 66, had been regrouped. However, he indicated that that was not the case and that he will speak to them when we come to them. Therefore, the groupings of the amendments on referendums that we have here are definitive.

My Lords, I thank the noble Lord, Lord Forsyth, for his amendments and for opening this debate. I also thank him for the opportunity to make a speech that will, I hope, over the hours that we will spend on debating these and related issues, be considered to be multipurpose.

I had expected—and anticipated in preparing my speaking notes—the amendments of my noble friend Lord Foulkes to have been regrouped, for maybe the second time, with those of the noble Lord, Lord Forsyth. Therefore, I wrote a note to myself to apologise to both noble Lords for giving a generic response, rather than addressing all the subtleties of the individual effects of their amendments. I do so because this is, ultimately, an issue of principle. I do not devalue all the detailed points that underpin the argument that the noble Lord, Lord Forsyth, put forward about the interesting debates that we could have in Scotland on the referendum and the detail of these specific taxation powers. However, whether we have a referendum on them is an issue of principle, and there are principles that we ought to apply. I will deal with that. I am sure that we will then get to the detail through the revised groupings, or re-revised groupings, of amendments that I have in front of me. The noble Lord, Lord Forsyth, has indicated that the details are exercising him.

My second point is one that I have made before. I deeply regret that timetabling prevented the other place dealing with the detail of these very important issues. The last time that we convened this Committee, we had a very interesting debate on Clause 28— probably for the first time anywhere in the United Kingdom, unfortunately. It is a matter of deep regret that our elected representatives in this Parliament were denied the opportunity for debate by timetabling, thereby denying us a quarry of their position that we could mine to inform our debate. Therefore, when we draw on what we believe is the will of the Scottish people, as expressed by their elected representatives, we draw on information that unfortunately cannot be in the public domain, such as conversations and observations. Some of us have expertise that we have built up over time from watching what is happening in Scotland and knowing, from the conduct of politicians, what the people they represent are telling them. That is deeply unfortunate but it is where we are. There is a bigger issue at stake in the politics of Scotland, but I will come to that strongly later in the debate. We should keep our eye on the prize, which at this time is the union of the United Kingdom. There is a political imperative at the moment that should dominate everything that we do. I regret that we are sometimes forced into undermining that by the way in which this has been handled, which has been deeply inefficient.

I turn to the principle of referendum. I do not believe that there is any constitutional imperative to hold a referendum on the devolution of financial powers to Scotland, as provided for by Part 3 of the Bill, for the following reasons. First, the conclusion of the Select Committee on the Constitution in its 2010 report, Referendums in the United Kingdom, was:

“We do not believe that it is possible to provide a precise definition of what constitutes a ‘fundamental constitutional issue’”.

It is a fascinating publication for the reasons that I am about to explain to your Lordships’ House. The committee did not look specifically at the example of the devolution of financial powers, although it could have because it was in the air. Therefore, noble Lords are entitled to look beyond such a conclusion to test whether what has been described by government Ministers as the largest transfer of financial power from London since the creation of the United Kingdom would be a likely candidate for a referendum.

In looking beyond the committee’s conclusions, we should look at the evidence that was heard, which is deeply instructive. If noble Lords will excuse me, I will go into this in some detail because it is interesting. Before I rehearse some of the evidence, I am prepared to concede that people who listen to this debate may think, on the basis of the expert testimony to the committee, that there is a legitimate view that that evidence tends towards the view that the devolution of financial powers would commonly be considered a candidate for referendum, given that the definitions posited included the following. I will share a number of them with noble Lords.

In giving evidence, Professor Gallagher referred to,

“fundamental questions concerning sovereignty or a major constitutional settlement, especially if they concern steps that would be completely or virtually irreversible once enacted”.

The Institute of Welsh Affairs, in its evidence on page 126, referred to,

“truly major issues of democratic principle—change that alters fundamentally the nature of the state”.

Caroline Morris, who is an expert, gave two definitions:

“Topics ... which directly affect the constitutional make-up and powers of a state”,


“changes to the sovereign powers of a state”.

My noble friend Lady Kennedy of the Shaws gave the following definition:

“Anything that changed the power balances within our democratic system ... anything that in any way redistributed power in a significant sense”.

Professor Bogdanor cited:

“Legislative proposals which provide for a radical alteration in the machinery by which the laws are made”.

Professor Saward referred to,

“significant, encompassing and lasting change in the formal and general rules and rights which locate political authority”.

Professor Graham Smith mentioned,

“anything that changes the dynamic and the relationship between the people and those who are elected”.

All these definitions, which are not mutually consistent, could support the argument of the noble Lord, Lord Forsyth. However, they must all be considered against the backdrop of historic precedent. As the Constitution Committee noted in its analysis, no definition of principle can be extracted from historic precedent.

I agree that all those definitions could be advanced and are open to argument, but what about something that has been approved by referendum but which you propose to reverse?

I am grateful to the noble Lord for his intervention. I think that the somewhat delayed intervention by the noble Earl, Lord Mar and Kellie, on the noble Lord’s speech—it occurred long after the noble Lord had stopped speaking, but it was in the nature of an intervention—answered that point, but I will come to that in a moment. I think that I can answer that question.

Although it could be said that matters of significant constitutional change ought to be put to a referendum, many are not. Indeed, there was never a referendum on the Human Rights Act 1998—some people may regret that—the Fixed-term Parliaments Act, the Constitutional Reform Act 2005 or, indeed, if I anticipate the outcome of the debate that is presently taking place, on the future of your Lordships’ House. The House of Lords Reform Bill does not anticipate a referendum on that matter in the next Parliament. Therefore, although there appear to be certain broad principles on which academics and others can give evidence, which indicate what is a good candidate for a referendum, ultimately it seems that it comes down to a political judgment. We appear consistently to have exercised this power on the basis of political judgment. It is for this reason that I do not think we can discuss the noble Lord’s amendments—I anticipate my noble friend’s amendments—in a vacuum from the political environment. We have to defer to the political circumstances that face us during our consideration of this Bill. That is what I invite noble Lords to do.

I suggest that to require a referendum on the devolution of financial powers before the commencement of Part 3 of this Bill would be irrelevant in the present political context. Indeed, I go further—I think it would be irresponsible for the reason that the single fundamental question being posed to the people of Scotland at this time concerns the issue of secession. An additional referendum in this context would only confuse such a debate and distract from the single important question at hand. I understand that the circumstances have changed but we are discussing this matter now and not when we had expected that we would when this Bill was conceived as it emerged out of the Calman commission.

It is important to note that with the exception—it is an impressive exception—of the noble Lord, Lord Forsyth, and his shaky alliance with my noble friend Lord Foulkes, there is no political movement at all for any such referendum. There is no clamour for such a referendum in Scotland. I know that the noble Lord, Lord Forsyth, will say that is because many people in Scotland do not understand the implications of this piece of legislation.

I hope I may interrupt the noble Lord again. His speeches are always carefully crafted and well thought through and I am enjoying listening to him. However, when he says that there is no demand for such a referendum in Scotland—I absolutely agree with him that the key issue is whether or not we are going to break up the United Kingdom—I had the impression that the First Minister, the Scotsman, Scotland on Sunday and every newspaper in Scotland were all campaigning that people should have an opportunity to have a referendum on devo-max. To my mind what is in this Bill is devo-max. Indeed, my noble and learned friend the Minister says that in my mind in some ways it goes beyond that. However, there are within the Bill the powers to deliver devo-max. Therefore, when the noble Lord says there is no demand for this in Scotland, I think there is a demand for a referendum on extra powers which are already being delivered by this Parliament, and which people are completely unaware of.

I hope the noble Lord will not be surprised to hear that I anticipated this very point about devo-max. I intend to cover it very specifically. However, I am driven in these arguments by the political imperative of concentrating most of my political firepower on the arguments for retaining the union of the United Kingdom. I have tested every contribution that I have made to this debate against whether or not it makes that retention more or less likely. I ask noble Lords to join me in concentrating their minds on that issue, to look at this matter in the context of the political circumstances that face us at the moment and to make priority choices. In other circumstances I might well have supported the amendment of the noble Lord, Lord Forsyth, but in these circumstances I do not. I am trying to lay out the arguments.

As I was saying, there is no political movement for such a referendum. There is remarkably complete coherence between the parties in Scotland on the view that there is no necessity to seek a further mandate from the electorate as regards a referendum on these powers. Further, as the Calman commission noted, and the noble Earl, Lord Mar and Kellie, has reminded the House, there is an argument contrary to the argument put forward by the noble Lord, Lord Forsyth, that such a mandate has already at least partially been granted by the 1997 referendum on Scottish devolution in which 63.5 per cent of the Scottish electorate agreed with the statement,

“I agree that a Scottish Parliament should have tax-varying powers”.

That was the question, not plus or minus 3p, or what the consequences would be if this power was or was not used—we know the history of that—but whether the Scottish electorate agreed with the statement,

“I agree that a Scottish Parliament should have tax-varying powers”.

In a recent report on a referendum on Scottish independence, the Select Committee on the Constitution agreed with the UK Government’s position—this comes to the point the noble Lord raised about devo-max—that whereas independence is a Scottish question, devolution-max is not solely a Scottish question and proposals for a significant change to the devolution settlement considered under this title must be addressed only once the issue of secession has been clearly and decisively addressed by a referendum of the Scottish people. Therefore, we need to deal with these things in series and we need to keep our eye on the ball as regards the issue which is foremost in Scottish and UK politics at the moment in terms of the constitution. It is within this public and political discourse that we need to consider the priority of a referendum on the devolution of financial powers. I argue that the conclusions of the Select Committee are of precise relevance to this question. A referendum on the devolution of financial powers as proposed by Calman, and elaborated in this Bill, would in my view be politically misguided and publicly rejected prior to a referendum on devolution.

These are powers which I have said repeatedly the Scottish people want. There is significant evidence of that. I regret that I am not able to refer noble Lords to detailed debates in the other place to advance that argument but I know from extensive consultation with Scottish parliamentarians and Scottish people that the Scottish people want these powers. Much more importantly, they want these powers now because they want them to address issues which are important to the Scottish people now and were made obvious as a priority to them by yet another performance of the Scottish economy that has reversed the previous trend of devolution over the past few years in that we are now behind the rest of the United Kingdom in unemployment and growth. For almost all the period of devolution in Scotland the opposite situation applied. It is only since the SNP has taken control of government in Scotland that we have got into a situation whereby we are falling behind the rest of the United Kingdom as regards unemployment and comparative growth of GDP. Therefore, these powers are needed now.

The future development of the devolution settlement, be that full fiscal autonomy or whatever—there are all sorts of titles—may well ultimately be a question for a referendum, but it is a question that needs to follow the broader one of Scotland’s future membership of the union. In my view it cannot coherently be proposed before that. Consequently, these Benches cannot support the noble Lord’s proposed amendment of the Bill. I apologise to my noble friend Lord Foulkes far more in advance than I would normally have to do as we will not support his call for a referendum, no matter what the motivation for it is, when we come to that part of our debate in Committee.

I should like to follow my noble friend and say that I do not support the amendment. I had the privilege of being a neighbour of the noble Lord, Lord Forsyth, for many years. I have seen him exercise political skill across a broad spectrum, but on many occasions not without a degree of cynicism. I have to say that his amendment today is just a cynical opportunity to attack the principle of taxation. The idea that referenda have anything of any substance to do with this is just a bit of a smokescreen. The fact of the matter is that a referendum agreed that a Scottish Parliament would have tax-raising powers. The powers have never been exercised. Do we therefore need a referendum to take away powers that we have never used? I do not think so. There is a case, which has been made quite well by the noble Lord, regarding the clumsiness of the manner in which this taxation will be imposed. Were it to be imposed in its present form, it would probably be grossly unfair to too many of the poorest people within Scotland. That is the issue.

Let us not bother about the referendum question. Let us just question whether or not taxation in the form that is being suggested is the most appropriate way of trying to develop a sense of fiscal responsibility in a Scottish Parliament—whether it is separate or devo- maxed, or even with its present fumbling, incompetent and profligate way of expenditure.

My Lords, the amendments we are discussing relate to whether there should be a referendum on the provisions contained within the Bill’s specific reference to the changes to income tax and Scottish income tax. There will, of course, be opportunities at the next sitting of the Committee to debate amendments relating to an independence referendum. Indeed, later today there will be an opportunity to consider the details of the income tax proposals. I have no doubt that my noble friends Lord Forsyth and Lord Lyell will contribute to that, and my noble friend Lord Sassoon will be very pleased to respond.

I should make a point of clarification to my noble friend Lord Lyell, who raised a question about the Income Tax Act 2007. I can advise him that that Act sets out, as part of the tax law rewrite programme, how an individual’s income should be taxed and the distinction between savings and non-savings income. It is right that the Bill follows that approach.

The Government have a clear mandate to implement the Calman commission’s conclusions, as we seek to do in the Bill. There were pledges to do that in not only the manifestos of the two coalition parties but in the manifesto of the Official Opposition, the Labour Party. It is fair to say that these proposals were worked out after consultation by the Calman commission. I do not think that anyone can fault the level of consultation. There was considerable public discussion after the publication of that commission’s report. There was a White Paper by the previous Labour Government. There was a Command Paper by this Administration. These matters have been pretty well aired and the noble Lord, Lord Browne, said that these are powers that people want. The Scottish Social Attitudes Survey 2010 showed that 57 per cent of people wanted the Scottish Parliament to have powers of taxation and, significantly, only 37 per cent wanted Westminster to have tax powers. There has been considerable discussion of this, and I am not aware, with some respectable and respected noble exceptions, of any great clamour to have a referendum on these matters.

The proposal would be to have a referendum prior to the implementation of the finance provisions. These provisions will give the Scottish Parliament increased powers to take decisions on how to raise money as well as how to spend it. The crucial point was the final one made by the noble Lord, Lord O’Neill—the Bill will give the Parliament increased accountability and fiscal responsibility. While these reforms are significant and substantial new powers, they fall very much within the framework of the original Act.

The noble Lord, Lord Browne, reminded us that the question on tax powers was answered overwhelmingly in the affirmative in the 1997 referendum. In it, the Scottish electorate endorsed the establishment of a Parliament with the ability to exercise tax-varying powers, and therefore have a degree of financial accountability for taxation and spending decisions. As has been pointed out, these powers have not been used, but it is clear that there is demand for increased financial accountability, and that call was regularly made to the Calman commission—the Parliament should be not only responsible for how it spends money but have some greater accountability and responsibility for how it raises money. That has widespread support. It was also within the existing framework of the Scotland Act to vary the powers of the Scottish Parliament and its Ministers by order-making powers, such as those in Sections 30 and 63 of that Act. Here, of course, we are doing that by primary legislation.

The noble Lord, Lord Browne, referred to the Constitution Committee report on referendums. I declare an interest because I was a member of that committee when that report was produced. I could not say what its view would have been of this proposal, but I agree with the noble Lord’s analysis that when we looked at past referendums they were very much matters of political judgment. I may have misheard what my noble friend said in his concluding remarks—that the referendum was supported by all parties in 1997. However, if he casts his mind back, he was a busy Secretary of State at the time, and when the Labour Party in opposition proposed a referendum in spring 1996, a considerable furore greeted it.

My Lords, I hesitate to go back over old ground and reopen old wounds, but as I recall, I was the person who was pressing the Labour Party to have a referendum on the tax-varying powers. The shadow Secretary of State—now the noble Lord, Lord Robertson of Port Ellen—was dead set against a referendum but he was sat upon by Tony Blair, the then leader of the Opposition, and forced to agree to one. I think that I can claim a track record on getting the referendum that was initially opposed by the then Labour Opposition. But quite rightly, and to their credit, they followed through on it.

I am probably going to compound matters by saying that it was opposed by the Scottish Liberal Democrats at that time. It was not right to say that all parties called for a referendum, but we all campaigned in it.

That absolutely illustrates my view. The noble Lord, Lord Browne, says that people’s attitudes to referendums are a matter of political judgment. I tend to find that people are in favour of referendums if they think that they can win them but against them if they think they might lose.

My Lords, I did not have any doubt that we would win a referendum, I just did not think it was necessary—and I did take the legislation through on the referendum for the alternative vote. The point, as the noble Lord, Lord Browne, said, is that there is no political movement for a referendum on these measures. He is also absolutely right to say that all of us who share the goal of keeping Scotland within the United Kingdom should have our eye fixed on the one referendum, in which we will seek to ensure that Scotland remains a full member and plays a full part in the United Kingdom. Any other referendum in the interim would be a distraction and could undermine the case, because it would obviously take up time and resources when we should in fact be focusing on exposing the weaknesses of the case for independence and proclaiming the case for a Scotland within the United Kingdom. In those circumstances, I very much hope that my noble friend will not press his amendments.

My Lords, we have had an interesting debate and I am grateful to everyone who has spoken. I seem to be somewhat isolated on this issue. I worry about the idea that the tax-raising powers in the Bill will increase the accountability of the Scottish Parliament. As I am sure my noble and learned friend will confirm, had those powers been in place and exercised since 1998 when the Scottish Parliament was established, the block grant which the Scottish Parliament had available to it would have been reduced by many billions. The exercise involves substituting a slice of the Barnett funding with funding that comes from the tax base. If public expenditure is growing faster than the tax base, the result is that far less revenue is available.

Tempted as I am to support the proposals because they would have had the effect of squeezing public expenditure in Scotland substantially and, I suggest, avoided considerable waste and the policies which have resisted reform of the public services, the notion that they would increase accountability needs to be looked at very carefully. It will squeeze the resources available to the Scottish Government over time and, in doing so, put pressure on them to use the tax powers, which by the nature of the gearing effect will result inevitably in Scotland becoming the highest taxed part of the United Kingdom. I venture to suggest that at that point, many people will say: “Why weren't we told this? Why didn't we know about it?”. If I am still around, I will take great pleasure in saying: “I suggested that there should be a referendum so that people had a chance to consider these arguments and know what they were being committed to”.

I entirely accept that the political classes and the political establishment have got together in the worthy cause of stopping the Scottish nationalists getting control of the Scottish Parliament and taking us towards independence, but I have my doubts about how it will increase accountability. I suggest that my noble and learned friend think about this again. If a referendum was held—I assume that those on both Front Benches are confident that the Scottish people would vote yes to these tax-raising powers, although I suspect that their opposition to the referendum may lie in their doubt that they would—there would be clear consent for the exercise of the powers.

The noble Lord, Lord Browne, and the noble Earl, Lord Mar and Kellie, suggested that a mandate was granted by the referendum on the original Scotland Bill. The noble Lord is quite right to say that the question was:

“I agree that the Scottish Parliament should have tax-varying powers”,

but those tax-varying powers were defined in the referendum campaign as being limited solely to 3p on the basic rate. This is far more than tax-varying powers. This is the introduction for the first time of a new Scottish rate of income tax. We are not talking about tax-varying powers here, we are talking about the ability to set a new rate of income tax that the Scottish Parliament chooses.

My noble and learned friend talks about opinion polls and surveys. I venture to suggest that if you go out and say, “Do you think the Scottish Parliament should have more powers?”, that is a bit like saying, “Do you love your mother?”. Of course people are going to say yes, the Scottish Parliament should have more powers. If you ask them, “Do you think that Scotland should be able to be made the highest taxed part of the United Kingdom?”, I think they might have a different view. If you ask them, “Do you think that the Scottish Parliament should be able to take money out of your pay packet?”, you might get a different answer.

It is an important part of the noble Lord’s argument that there is an inevitability of Scotland becoming the most heavily taxed part of the United Kingdom and that that will be done against the wishes of the Scottish people, who will never be consulted about it. We intend to have general elections in Scotland for the Scottish Parliament. This issue will come to the fore when we get to the next group of amendments, but the issue of the rate of tax will be decided in general elections by the Scottish people through manifestos put before them, just as it is for the rest of the United Kingdom.

I venture to suggest that I cannot think of any way in which any politician of any party, with the setup as it is in respect of the taxation powers and the way that the block grant will be calculated—subject to later review, but even assuming that Barnett survives—and given the levels of public expenditure and the position we are in, would be able honestly to do other than to tell the voters that income tax will have to go up. The numbers simply do not add up.

Let us just take the promises being made by the First Minister. On the whole, if you promise people free health care, free prescriptions, free bus travel, free nursery care and free this, that and the other and you do not have the money to pay for it, whoever comes in will find it very difficult to reverse that. Those are all very expensive requirements. If a Chancellor of the Exchequer gives the First Minister in an election year a bisque so that he does not have to cut public expenditure to meet the budget deficit requirements and the cuts have to be made in the subsequent year, you are building up very substantial gaps. I said that the gap on the budget deficit was about £3 billion. A tax-varying power where one penny on income tax raises merely £400 million will not get you very far in that respect. It is a delusion. If anyone in this House believes that the power will be used to reduce taxation, I think they are misguided.

I entirely agree with the noble Lord that we must be careful to focus on the issue of independence. He is absolutely right about that. Where I believe that the Bill is playing into the hands of the nationalists is that they are saying: “Look, you cannot play golf with one club. You cannot run an economy simply by having limited tax-varying powers that relate to one part of the income tax yield. You need corporation tax powers so that you can get growth so that the yield goes up”. That argument has a certain degree of logic to it—if not, altogether, a degree of fantasy.

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.

I wonder whether the memory of the noble Lord, Lord Forsyth, goes back to the time when the Tories were very powerful in Scotland.

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?

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.

Amendment 53 withdrawn.

Amendment 53A

Moved by

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.”

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.

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?

Perhaps I should have made it clear that these amendments are being degrouped, so we are just discussing Amendment 53A.

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.

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.

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.

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.

My Lords, as my noble friend Lord Forsyth of Drumlean has explained, Amendment 53A would require the Scottish Parliament to consult interested parties prior to passing a resolution that would see a Scottish taxpayer paying a higher rate of tax on non-savings income than the equivalent UK taxpayer. Of course, my noble friend has also explained in passing that there is no such requirement on the UK Government to consult interested parties when they make similar decisions.

There are two reasons why the Government do not see merit in my noble friend’s amendment. First, the underlying purpose of the Bill is after all to provide for greater financial accountability of the Scottish Parliament to its electorate and give the Scottish Parliament a real stake in Scottish economic performance. I hear, and heard in our previous sitting, my noble friend’s doubts about that, but that is the purpose of the Bill. Devolving the right to set a Scottish rate of income tax to the Scottish Parliament is absolutely key and central to that, which clearly my noble friend accepts. In devolving that key power, I do not believe that it is right for the Government to impose conditions on how the power is used. Ultimately, as the noble Lord, Lord Browne of Ladyton, pointed out in the previous discussion, the Scottish Parliament is and will continue to be subject to regular elections. My noble friend seems to be blithely suggesting that somehow the income tax rate will go up and up in Scotland without reference to the fact that it might not be an election-winning strategy. The Scottish Parliament should not be fettered in the consultation processes through the legislation.

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.

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?

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.

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.

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.

I think that is mildly critical of my noble friend. However, I accept that the procedures that are adopted for the consideration of the Budget may very well cover the point, and I certainly would like to study them. I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

Amendment 54

Tabled by

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).”

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—

My Lords, may I press the noble Lord for a little clarity? Is he speaking to Amendment 54 or to Amendment 54A?

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.

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.

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.

Amendment 54 not moved.

Amendment 54ZA

Moved by

54ZA: Clause 30, page 23, line 10, leave out “A”

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 who move between jurisdictions within the United Kingdom inasmuch as they create uncertainty, difficulties of interpretation and potential problems regarding compliance. In particular, the definition of “close connection” contained in new Section 80E creates a difficulty of interpretation—and what does “place of residence” mean? It appears to be different from residence as understood in other areas of tax law, such as capital gains tax. Does “place of residence” imply ownership when juxtaposed with “main place of residence” in paragraphs (b) and (c) of new Section 80E(3)? “Place of residence” and “main place of residence” are not defined in new Section 80E, and therefore create potential problems of interpretation for those who may live in Scotland yet work in England, or vice versa, including those living on the Scottish-English border.

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.

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.

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 the noble Lord, Lord Maxton, comes into this category—including those working on board ships or oil rigs who are neither UK resident nor employed by UK employers. There will be another issue with members of the Armed Forces, where it seems inevitable that members of the same unit will end up being taxed differently. I beg to move.

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.

My Lords, following on from the noble Lord, Lord Lyell, what about people who are either travelling on or employed on the night sleeper?

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.

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 we are not having that even under Mr Salmond’s proposals. Therefore, I simply do not see how it will work. Perhaps the Minister will enlighten us.

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?

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.

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.

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.

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 since the Larne and Belfast ferries to Cairnryan and Stranraer are some of the busiest within the United Kingdom. The people in Northern Ireland on those ferries will remain United Kingdom taxpayers until they land in Scotland.

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?

My Lords, it might clearly be seen that this group raises significant issues. The Scottish rate of income tax is plainly a major innovation in the structure of UK tax. Where one has a major innovation in taxation issues, usually simplicity is regarded as a virtue. I suggest that simplicity and clarity would be very clear virtues here. The questions that have arisen include definitions. I should like to raise certain of these points. The definition currently being suggested—unlike the bygone definition under the variable rate—is by reference to,

“an individual who is resident in the UK for income tax purposes”.

There is no statutory definition of UK residency for tax purposes but, helpfully, there are 86 pages of guidance which are subject to frequent revision by HMRC. In seeking clarity, will there be a way in which the Government will give some guidance as to how specifically the taxpayer for Scotland will be defined and how residence will be defined?

The Chartered Institute of Taxation has suggested that there should be a statutory residence test for the UK. It would be very interesting to hear from the Minister whether steps are being taken to put in place such a test. The chartered institute is not alone. As the noble Lord, Lord Lyell, indicates, the Institute of Chartered Accountants of Scotland has raised this question, as has the Federation of Small Businesses and CBI Scotland. They all seek to see a concrete definition of residence for this tax. What are Her Majesty's Government doing to address these concerns from the professional experts in the area?

The noble Duke, the Duke of Montrose, raised the question of close connection and the test being employed. Oil workers living in England but commuting to a Scottish oil rig will not have a close connection but the Scottish resident who works in England, returning to Scotland at weekends and holidays, will, apparently, be defined as a Scottish taxpayer. It will be interesting to hear the Minister’s answer to the question of how the Government will deal with mobile workers. They may find it impossible to know where they might be until a day count is carried out at the end of the year.

Concerns have also been raised that there may be unfairnesses that, through a loose definition of Scottish residence, may permit wealthy individuals to arrange their affairs to avoid a higher rate of tax. Plainly, if this is lawful, it is lawful, but it may raise questions as to the extent of avoidance that might take place. It will be interesting to hear whether that has been considered.

It is inevitable that there will be disputes in relation to the definition of residence. Are mechanisms to be put in place to deal with disputes in relation to the application of the rules? Will there be a tribunal system with a right of appeal or will it simply be left to the courts? Where will we stand on this?

I turn to questions of non-UK residents, which tend to excite from time to time. Do the Government agree that a non-UK resident working in Scotland is liable to pay tax in Scotland? Should this be at the Scottish rate? The Bill currently provides that, for example, company directors, sportsmen and entertainers undertaking duties wholly in Scotland would pay UK income tax on income earned entirely in Scotland. Does that seem to be the correct way forward with a Scottish income tax? Employees inevitably will go to their employers in order to seek information on their tax status. They are more likely to do that than to go to the call lines of HMRC. What are the Government doing to support employers, particularly small and medium-sized enterprises, so that they in turn can support their employees in their inquiries?

More broadly, concerns have been expressed by many, including the Chartered Institute of Taxation, that there will be a need to staff up properly to meet an expected flow of difficulties and questions in respect of Scottish income tax. The approach that HMRC adopts towards staffing is one of considerable importance because taxation is perhaps one of the most complicated areas of legislation. While the Scottish Parliament may be able to create new taxes, the questions that will arise are likely to be highly complicated and require a considerable amount of professional input in order to permit clarity to be seen by the Scottish taxpayer.

Another question has been raised which I think might be the subject of a separate amendment but, like the noble Lord, Lord Forsyth, I am not entirely clear on what the running order is at the moment. It concerns the split year. Currently no account is taken of split years where someone may be a Scottish taxpayer for one part of the year and a taxpayer somewhere else in the rest of the United Kingdom for the other parts. The problem is that if one is defined as a Scottish taxpayer at the beginning of the year, it appears that one remains a Scottish taxpayer for the entire year. That may not seem entirely fair or satisfactory. It is perhaps a little unfair to the individual who moves to another part of the United Kingdom, and it creates difficulties for Scottish employers or indeed UK employers who may find themselves having to deal with Scottish rates of income tax in respect of employees who are far away from Scotland. It is a curiosity and seems to be slightly cumbersome. One would be given some kind of confidence that this is going to work well if the Government could indicate how these types of issues will be dealt with. Other changes might be required in relation to pension deduction rules. Should such rule changes be effected through primary legislation by the Scottish Parliament or should they simply be done by subsidiary legislation? It is plain that the former would avoid the lack of clarity that secondary legislation can sometimes create.

One further area of avoidance on which some assistance might be helpful is how Her Majesty’s Government propose to deal with avoidance of Scottish income tax rates by the use of the personal service company. Such a company registered in England would presumably permit the taxpayer to draw dividends from an English company. Those do not appear to fall within the Scottish rate of income tax. Again, this might seem slightly curious.

In relation to the self-employed, it would be useful to know whether the Government have particular proposals that they wish to put in place on how self-assessment tax returns will proceed. Are they to be altered or will they remain the same? In relation to benefits, inevitably there will be an impact on how they operate in the context of the Scottish rate of income tax. Benefits are assessed on after-tax income. If the Scottish rate is higher, and there is a view that it will always be higher, that will have an impact on benefits because presumably the benefit recipient will be entitled to a higher rate of benefit. How are Her Majesty’s Government going to deal with this rather complex problem? If taxation is one of the most complicated areas of our legislation, benefits can certainly give it a pretty good run as the second most complicated area. If, of course, the Scottish tax rate were lower—I accept that this is a possibility—mechanisms may be required to deal with the benefit by reducing it. How is that going to be dealt with?

I accept that I have bombarded the Minister with a range of questions for which I do not seek immediate clear answers. It would be wholly unfair to do so.

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.

I am guided by the noble Lord, Lord Forsyth, as to how one should approach the Minister. I note what he has said and I hope that I have at least given the noble Lord some useful advice that will allow him to look at certain issues. However, I will await the answers from the Minister.

There is one further point that I should raise with the Minister, which to an extent echoes what the noble Lord, Lord Kilclooney, said. We are in a position where devolution seems to be taking us to where we may have a separate tax system in Scotland, in Northern Ireland, possibly in Wales and in England. Under the coalition Government there is a new Office of Tax Simplification. It would be helpful to know whether some guidance might be sought as to how simplification might be assisted. I do not mean that entirely frivolously because it is plain that this is an area of great complexity. It would be useful at least to recognise that there may be a step away from a unitary tax system to something that is more complicated, so guidance on simplification from every quarter might be useful. In relation to the various amendments, it will be detected that we are broadly in support of seeking clarity.

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.

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.

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 and is potentially onerous. That is why, in designing the definition, we have sought to keep the number of people who have to do this counting of days to an absolute minimum.

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 centred on the question of close connection and main residence. That is why we thought that the 1998 Act definition needed to be changed.

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.

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.

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.

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.

The Minister has not addressed the interface of tax and benefit. Tax credits perhaps give rise to some of the most complicated questions. Speaking as a former Member of Parliament, I am aware of the issues that arise when there is the slightest adjustment to the income of some of the poorest people in our community. It would be remiss of us not to address that aspect of taxation being imposed at different rates on different sides of the border.

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.

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?

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 they are getting precious close to artificial schemes that would be covered at present. However, let me take the matter away.

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.

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 less than some other parts of the county—but ending up, because of the universal credit, getting paid more through benefit compensation than people south of the border in Cumbria or Northumberland, because they are being charged a higher rate of tax in Scotland. This kind of anomaly is going to create all kinds of difficulties. This form of taxation may not be the cause of it, but it will certainly be an exacerbating factor and have social consequences of quite a dire character.

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?

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.

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.

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?

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?

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.

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 Scottish taxpayers. They had not had the indication, but they thought that 75 would be caught by this legislation. My noble friend and his colleague down the corridor might think that the figure was small, but it was 20 per cent, and that was just one tiny company in Scotland. Will my noble friend consider all the trucks crossing the border transporting food and 20 per cent of the drivers being caught? That is a little more than a few.

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,

“means a period of twenty-four hours terminating at midnight”,

was to couple it on to subsection (1)(a) of proposed new Section 80F, which refers to,

“the number of days in the year on which T is in Scotland at the end of the day”.

The Minister seems perfectly happy to leave this as a vague definition, but to some of us it is hard to know whether,

“the end of the day”,

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 playing rather extraordinary games and the Bill does not pass in its present form, the Minister might have to address what will happen to a Scotsman living in Antarctica. In the mean time, I beg leave to withdraw the amendment.

Amendment 54ZA withdrawn.

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.

Amendment 54A

Moved by

54A: Clause 30, page 23, line 10, leave out “or C” and insert “, C or D”

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.

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.

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.

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?

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?

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 night. However, my understanding is that we are talking about a very specific matter to do with a rate of income tax which is quite separate from the law that relates to where people can vote.

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.

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?

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.

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,

“where T has 2 or more places of residence”,

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 these service men and women are paid very poorly for the job they do, and therefore the burden of increased taxation could be significant.

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.

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.

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.

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 when considering how the Bill will operate. On reflection and after consultation, it was decided that the basic test of close connection should apply to the armed services, as it will to everybody else. I accept that how it works out will depend on an individual’s circumstances.

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.

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.

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.

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 he is giving an undertaking on behalf of the Treasury and the Government that servicemen stationed in Scotland will not lose out as a result of the incidence of Scottish income tax, I shall be very happy to withdraw my amendment.

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.

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?

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.

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.

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 noble friend says, “We consulted the Scottish Parliament and it was happy to leave it as it is”, of course it was happy to leave it as it is; it wants the money. It is in its interests to have as many people as possible paying. My noble friend shakes his head. Why is it not in its interests?

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.

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.

Amendment 54A withdrawn.

Amendment 54B

Moved by

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.”

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 a principle involved here. I see a principle, which is that you should not be taxed for something that you have not received.

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.

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.

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—

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 Treasury having to bring the objectives of this Bill into line with practical implementation and finding it extremely difficult to do so. The Minister has just told us that there is a practical difficulty in addressing the amendment proposed by the noble Lord, Lord Forsyth. Can he explain why that practical difficulty does not also arise with people who are able to change their non-domicile status in the middle of a tax year and, indeed, change twice during a tax year? If that can be managed for the super-rich, why can it not be managed in this situation?

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—

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.

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.

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.

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.

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 status applies. We discussed that at some length earlier, and the whole concept is to keep it as simple as possible for the basic overlay of the Scottish status on the UK status. Exactly the same thing applies in respect of this proposed amendment—which goes directly to his challenge—which is that theoretically we could find more perfect concepts but we have to live in the real world. We want to make this fair but we want to make the tests workable for both the individual and, of course, HMRC, but particularly for the individual.

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.

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.

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.

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 moved from Scotland to somewhere else or to change their liability for Scottish income tax during the course of the tax year?

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.

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.

When the noble Lord talks about voting, someone moving from Scotland to England would be able to move their vote. They would not be able to move their tax apparently, but they would be able to take themselves off the register in one place and put themselves on the register somewhere else.

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—

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?

I have considerable respect for the noble Lord, who of course was the architect of the whole devolution thing and of the Scotland Act.

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—

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.

I must take the noble Lord’s word for it because he moves in those circles and I do not.

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.

Amendment 54B withdrawn.

Amendments 54BA and 54BB not moved.

Amendment 54C

Moved by

54C: Clause 30, page 23, leave out lines 18 to 21

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.

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 test should apply just as it would apply to Members of this House. I am really looking forward to hearing my noble friend’s explanation.

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”.

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.

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.

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?

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.

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.

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.

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 next year as well”. Fortunately those days have gone and I do not think that that would apply now. None the less, it is a reasonable safeguard to have this clause in the Bill.

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.

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.

Amendment 54C withdrawn.

Amendment 54D

Moved by

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)”

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 justify maintaining it there, and given that he is going down the track of listing in the Bill people about whom there might be some doubt but who ought to be caught by the income tax, it seems to me that we should extend this beyond elected Members of Parliaments to include others. I am thinking of Appeal Court judges, Peers and, of course, civil servants who have a close connection to Scotland. Amendment 54D starts a list, to which others are welcome to contribute, to add to those Members of Parliaments who have been singled out as being liable for the Scottish tax.

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.

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.

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.

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.

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.

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.

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.

Amendment 54D withdrawn.

Amendment 54E not moved.

Amendment 54F

Tabled by

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).”

Amendment 54F not moved.

Amendments 54FA and 54FB not moved.

Amendment 54G

Moved by

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.”

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.

My Lords, I support the noble Lord, Lord Forsyth, in seeking further areas of consultation. How true it is that the Scottish Parliament, under improved devolution, will have greater powers. None the less, it remains part of the United Kingdom and therefore it would be very important that consultation on areas which could have a significant effect throughout the United Kingdom should be put in place by the Treasury.

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.

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.

Amendment 54G withdrawn.

Amendment 54H

Moved by

54H: Clause 30, page 24, leave out lines 34 to 36

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 amendment seeks to tease out from the Minister exactly how it is intended to use this power since there are obvious dangers in having a retrospective ability to change the rules of the game well into the financial year. It could cause great trouble for an Administration in Edinburgh and might even be used in a highly undesirable political way. I beg to move.

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.