Clause 7 — Disclosure of Contributions Avoidance Arrangments

Orders of the Day — National Insurance Contributions Bill – in the House of Commons at 4:45 pm on 15 December 2005.

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Photo of Greg Knight Greg Knight Chair, Procedure Committee 4:45, 15 December 2005

I beg to move amendment No. 21, in page 14, line 22,leave out

'main benefit, or one of the main benefits' and insert 'only benefit'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following amendments:

No. 22, in page 14 , leave out lines 42 to 47.

No. 23, in page 14, line 44, after 'information' insert

'(whether or not obtained from a person entitled to practise as a barrister, solicitor or advocate within England and Wales, Scotland or Northern Ireland)'.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I will speak to amendments Nos. 21 and 23, but leave my hon. Friend Mr. Chope to address his amendment No. 22.

Amendment No. 21 seeks to narrow the scope of what amounts to a notifiable contribution arrangement from the near catch-all definition on page 14 of the Bill to a more modest, but reasonable definition, so that only where the clear and main aim is avoidance would the arrangement be a notifiable contribution arrangement. I look forward to the Paymaster General telling us why the wide definition in the Bill should be employed rather than my more reasonable, narrower definition.

I should declare an interest as a qualified solicitor and, until recently, a practising one. Although I am no longer practising, I remain on the roll of solicitors. Amendment No. 23 deals with the confidentiality rule and seeks to clarify its scope by making it clear that confidential advice does not need to be obtained from a UK qualified barrister or solicitor or, in Scotland, an advocate because it is important to make the provision wider than it is in the Bill.

There are in essence two parallel issues. One is the duty of confidentiality that covers almost all professional practitioners and the other is professional privilege, which must be argued before a court of law. All solicitors who hold a practising certificate and operate in England and Wales are required to abide by the Law Society's guide to the professional conduct of solicitors 1999. Rule 16 of that guide deals with a solicitor's general duty of confidentiality to his client. Rule 16.01 states:

"A solicitor is under a duty to keep confidential to his or her firm the affairs of clients and to ensure that the staff do the same."

There is a distinction between the duty to keep a client's affairs confidential and the concept of law, which is referred to in the Bill, known as legal professional privilege. The duty in conduct extends to all matters communicated to a solicitor by the client or on behalf of the client, with some very narrow exceptions. Legal professional privilege, however, protects communications between a client and a solicitor from being disclosed even in a court of law. Certain communications are not protected by legal professional privilege, but non-privilege communications remain subject to the solicitor's duty to keep his client's affairs confidential.

The disclosure of a client's confidences that is unauthorised by the client or by law usually leads to disciplinary proceedings against the solicitor and could leave that solicitor or barrister—it is usually a solicitor because there is no contractual basis between a client and a barrister—liable, in certain circumstances, to civil court proceedings that arise from the misuse of confidential information. So the duty of confidentiality applies to information about a client's affairs irrespective of the source of the information, and it continues despite the end of the retainer or, indeed, the client's death, when that right passes to the deceased's personal representatives.

Solicitors must be very careful. Even when a solicitor sends a postcard to acknowledge the receipt of a communication, care must be taken to ensure that no confidential information appears on it. The Law Society rightly regards the duty of confidentiality as fundamental to the relationship of the solicitor and the client. It exists both as an obligation in law, having regard to the nature of the contract, and as a matter of professional conduct. All the information discovered by a solicitor in the course of his retainer is confidential. Whether the information is also subject to privilege is a separate legal issue, about which I shall go into detail in a moment.

The circumstances in which confidentiality can be overridden are rare indeed. A solicitor who volunteers confidential information must be prepared to show powerful justification for breaching such confidentiality. Although it is clear that the solicitor owes that duty to the client, there are certain exceptional circumstances that override the duty. For example, a solicitor can reveal confidential information to the extent that he believes that it is necessary to prevent his client or a third party from committing a criminal act that the solicitor has reasonable grounds to believe is likely to result in serious bodily harm.

The Law Society's rule 16.02 sets out the circumstances in which the duty of confidentiality can be overridden. I shall not go into all of them, but the duty does not apply, for example, to information acquired by a solicitor, when the solicitor himself is being used by the client to facilitate the commission of a crime or fraud, because pursuing a crime or fraud is not within the scope of a professional retainer. If the solicitor becomes suspicious about a client's activities, he can normally assess the situation in the light of what the client has to say about it and the solicitor's own professional judgment and behave accordingly. Of course, in certain circumstances, the client himself may give express consent to the passing on of confidential information. In those circumstances, of course, the rule does not apply.

Occasionally, a solicitor is asked by the police or a third party such as the Inland Revenue—so this is relevant to the Bill—to give information or to show documents that the solicitor has obtained when acting for a client. Unless the client is prepared to waive confidentiality or the solicitor has evidence that a crime is taking place, the Law Society advises lawyers to insist on receiving a summons, usually a witness summons, or a subpoena, so that when those circumstances arise the lawyer can claim privilege before the court and ask the court to decide the issue.

The Inland Revenue asks solicitors to disclose documents and information on numerous occasions. In such circumstances, it is pretty clear that solicitors are protected. However, the Bill does not make it clear what will happen if a client employs someone who is a solicitor in France, Spain, or any of our EU partner countries, rather than a solicitor who is qualified under English law. The Law Society's international unit is clear about the matter because it has published guidance that states that overseas lawyers who operate in England and Wales, or who have offices and provide legal services in England and Wales, are expected to observe the same standards as UK-based solicitors. The rules of conduct cover such an eventuality, but I am not sure whether the Bill does. Could the Inland Revenue argue that, because a person under investigation had employed an overseas lawyer, that lawyer should not have the right to claim privilege on behalf of his client? I hope that the Minister agrees that privilege and the right to claim it should remain in such circumstances.

Accountants are under a professional duty in a similar way to solicitors. They have been issued with guidance informing them that they should not disclose information to third parties.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

I declare an interest as a chartered account, although I have not practised in public for many years. I am surprised that the Bill contains no reference to chartered accountants or the accountancy profession. Will my right hon. Friend give me some guidance on that?

Photo of Greg Knight Greg Knight Chair, Procedure Committee

My hon. Friend makes an interesting point. I would like to know whether the Minister thinks that proposed new section 132A(6) to the Social Security Administration Act 1992 would cover accountants. The provision includes a reference to "legal professional privilege", but having never practised as an accountant, I do not know whether accountants would fall under that definition or be covered by the Bill.

There is an overwhelming case for allowing anyone who gives confidential advice to ensure that that advice and the papers associated with it remain confidential, even if that person is not legally qualified. Some years ago I employed a young girl called Jane Oakes. She wanted to be a solicitor, but during her employment with me and while she was taking her studies, she was not legally qualified. However, she was an expert on certain areas of law. Information such as that which she obtained when advising a client on her area of expertise, even though she was not legally qualified at the time, should be protected under the Bill and the general provisions on client-lawyer confidentiality.

Legal privilege can provide a defence for a professional legal adviser to a charge of failing to report suspicions of money laundering, but that applies only if the information is received in privileged circumstances and is not communicated to the lawyer with the intention of furthering a criminal purpose. However—this might answer the point made by my hon. Friend Mr. Bone—there is no specific provision in money laundering legislation or the Bill to provide the same protection to accountants. I do not think that accountants generally have the same protection as lawyers when they give advice, although a legally qualified person who advises his employer can claim the defence.

I understand that, so far as money laundering is concerned, at the time the initial guidance was issued, discussions were under way between Ministers and interested parties about how legal privilege could be interpreted. Will the Minister, when she speaks on Third Reading, tell us whether she has had any discussions on the scope of privilege? It is a crucial point for many of us who will have to decide, during the Third Reading debate, whether we want to support the Bill or divide the House.

It being Five o'clock, Mr. Deputy Speaker, pursuant to Order [27 October], brought proceedings on consideration of the Bill to a conclusion.

Bill reported, without amendment.

Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, signified.]

Photo of Dawn Primarolo Dawn Primarolo Paymaster General (HM Treasury) 5:00, 15 December 2005

I beg to move, That the Bill be now read the Third time.

We have reached the final stage of the House's deliberations on the Bill and I would like to reiterate to the House the purpose of the Bill. It demonstrates the Government's continuing commitment to take action against tax and national insurance avoidance on rewards of employment and to close down avoidance in that area for good. The Bill is key to achieving the Treasury and Government's objectives of fairness and opportunity by ensuring that all pay the correct amount of tax and national insurance that the House has already decided. It is an essential element in building a serious and credible deterrent against future avoidance activity and it is needed to secure total tax and national insurance yields of £200 million in 2004–05 and £500 million per annum thereafter.

As the income tax disclosure provisions have demonstrated, it is not possible to anticipate the range and complexity of the extremely contrived avoidance arrangements that the Bill seeks to address. The powers in the Bill will enable the Government to deal effectively with any tax and national insurance avoidance arrangements that emerge in future that are designed to frustrate its intention that employers and employees should pay the proper amount of national insurance on the rewards of employment.

I thank Members who participated in debate on the Floor of the House and in Committee. The debate has entailed a thorough scrutiny of the purpose and details of the Bill, although at times, in some contributions, its objectives got a little lost. That scrutiny included details that are to be set out in regulations.

Dr. Cable said on Second Reading that

"in terms of general principles, I broadly endorse what the Government are trying to achieve through the Bill. My colleagues and I voted for higher national insurance contributions to fund the health service, so it follows that we want such revenue to be realised".—[Hansard, 27 October 2005; Vol. 438, c. 483.]

Unfortunately, that does not follow at all because in Standing Committee the hon. Gentleman's colleague, Chris Huhne, voted with Opposition Members on an amendment that would have removed the deterrent effect of the Bill. He accused the Government, and said:

"We are doing some violence to an underlying principle"— a principle that the hon. Member for Twickenham agreed with. He continued:

"The amount of tax revenue at issue should be very great to justify our doing that violence."—[Official Report, Standing Committee D, 15 November 2005; c. 9.]

I do not agree with the choice of words of the hon. Member for Eastleigh, and I am not sure what the Liberal Democrats now count as a substantial amount of revenue, but I think that £200 million, rising to £500 million, comes into that category. The arguments put forward have been supported by the hon. Member for Twickenham, and it would be good if he ensured some consistency from his party.

Over many years, we have seen a minority of employers—it is only a minority, but they happen to be very wealthy—using highly sophisticated tax advice to sidestep the intention of anti-avoidance legislation passed by this House, ranging from 1998 up to the Finance Act 2005. Despite legislation effective from the date of announcement, they have managed to continue to avoid paying the amount of tax and national insurance that is properly due. They do so because new contrived schemes can be devised quickly and used when legislation closing existing schemes is announced. With that approach, the revenue remains very much at risk, even in the short term unfortunately, because employers still have scope to adopt another scheme and get away with avoidance.

The Government's intention is to shut down such activity permanently. To do so, we have to undermine fundamentally the incentives for employers repeatedly to seek out new contrived schemes contrary to the intention of Parliament. The Bill is intended to deter future avoidance by providing a power to backdate a national insurance liability to 2 December 2004 if necessary. With such backdating, there is little point in employers and their advisers looking for a new loophole because the national insurance will still become due. The Government hope that we will not need to legislate because employers will finally get the message.

Any amendment that had the effect of removing our ability to make regulations imposing a backdated national insurance charge to a date before the announcement would remove the deterrent effect of the Bill and put all the revenue captured by those arrangements at risk. We have discussed that repeatedly, on Second Reading, in Committee and today, and I have repeatedly reassured Members that there are numerous examples of contrived schemes that the Government have had to deal with since 1997 and that the previous Government also had to tackle. They include contrived schemes involving employee benefit trusts, soft currency loans, such as those denominated in Turkish lira, adjustable options and special purpose vehicles. That will continue unless the Government take action.

The power to make regulations altering liability is restricted to reflecting, as far as possible, employment remuneration measures in tax legislation—normally Finance Acts—that have been backdated. The provisions would already have been discussed during a Finance Bill, before national insurance triggers action, and would be only to reflect anti-avoidance measures. Where such regulations are made, the House will already have had the chance to consider any relevant human rights issues on backdated tax legislation during the passage of the relevant Finance Bill or other legislation.

In addition, the Government will publish the draft national insurance regulations a minimum of 12 weeks before they are made, so that employers and their representatives have every opportunity to comment on the content of any proposed national insurance charge. Where possible, backdated draft regulations will be published no later than when the corresponding tax provisions are discussed in the Standing Committee of the Finance Bill. Both will be available at the same time, so that Members can see how they fit together. Furthermore, to ensure that there is adequate parliamentary scrutiny when regulations are made that create a backdated national insurance liability, such regulations will be subject to the affirmative resolution procedure.

I am pleased to be able to conclude that the Bill has had thorough scrutiny in the House. I have listened carefully to the constructive contributions from Members of all the parties involved in the discussions and I thank them for their participation.

I commend the Bill to the House.

Photo of Mark Hoban Mark Hoban Shadow Minister (Treasury) 5:09, 15 December 2005

At the outset, may I thank my hon. Friend Mr. Field for his role in scrutinising the Bill in Committee? It was not an onerous Committee, but he and my hon. Friends made great progress in asking detailed questions of the Paymaster General. I am therefore grateful for his work on the Bill. As the Paymaster General said on Report, this is my first opportunity to speak on tax matters as a Front-Bench spokesman. I am a chartered accountant, albeit a non-practising one—I except, of course, my annual struggle with my tax return—and I look forward to engaging in constructive debate on tax with the Treasury. I believe that Mr. Wright is a chartered accountant, and he, too, will wish to make a contribution to our debates.

For the benefit of Members who are new to the Bill, including my right hon. and hon. Friends who participated in our debates on Report, may I reflect why the Bill is needed? The Paymaster General referred to avoidance issues, but a separate Bill on national insurance is needed because of the way in which national insurance and other taxes are administered. The Bill makes additional provisions to the Social Security Contributions and Benefits Act 1992. Before 1999, national insurance contributions were managed by the Department of Social Security. Since then, they have been managed by the Treasury. Until national insurance was brought within the Treasury's remit, the national insurance and the income tax systems were often out of sync, and it took some time for national insurance to catch up with changes in income tax. Indeed, at one point, the Treasury and the DSS announced wildly differing approaches to the taxation of share options within weeks of each other. At least the Bill tries to manage those processes and bring them together.

The Bill has two principal objectives—first, to apply disclosure arrangements in the Finance Act 2004 for taxes other than national insurance to national insurance itself, and, secondly, to create the opportunity to levy retrospectively additional or new national insurance charges in cases in which the Government believe that schemes have been contrived to avoid national insurance. As the explanatory notes acknowledge, that is a first for national insurance:

"Existing NICs legislation does not allow regulations to be made which can take effect that far back."

That captures the flavour of our earlier debate on retrospection. I wish to highlight three issues that have been raised in debates on the Bill: retrospection; the breadth of the Bill and the problems that that has caused; and the delay between the introduction of primary and secondary legislation, and the comments that the Paymaster General made about the subject.

On retrospection, we have debated the Paymaster General's statement in December 2004 and the issues that arise from it. There are concerns about retrospection, but I do not want to reopen the wounds that were exposed on Report. The Institute of Chartered Accountants, in a letter from the tax faculty to the Paymaster General in February this year, highlighted three issues, including, first, the test of certainty and the fact that taxpayers should be aware of how much tax they pay. They are entitled to expect that they will be taxed in accordance with the law in force at the time of the relevant transaction. Retrospection undermines those expectations of certainty. Secondly, the institute considered the legal basis of retrospection and the way in which it sits in the wider context of EU and human rights law. Looking at emerging EU case law, it said that

"the state cannot retrospectively remove a right without a transitional period".

The Bill does not, as far as I am aware, provide a transitional period for the removal of a right. The test of the Bill, therefore, may not be in the House but in the courts.

The third issue raised was the potential of retrospective legislation to undermine the credibility of the UK tax system in the eyes of UK taxpayers. The Institute of Chartered Accountants rightly observes that by and large the UK tax system has a high degree of credibility, the tax rules are obeyed, and taxpayer compliance and honesty are good. If we introduce increased uncertainty into the tax system by greater use of retrospection, the predictability and certainty that is such a feature of the UK tax regime will start to diminish, perhaps leading to concern on the part of international employers. If they come to the UK and site operations here, will they find the tax regime changing without prior warning? We need to bear in mind those three aspects when we consider retrospection and its impact on the overall tax environment in which we work.

A further concern about retrospection is its impact on the law-making process. If retrospection on a wide scale becomes institutionalised, will law making become lax? If the Revenue thinks that it can have a second bite at the cherry by using retrospection to correct mistakes that it has made in drafting legislation, will that create an environment in which the Revenue takes less care in drafting the original legislation? I am sure the Treasury and Her Majesty's Revenue and Customs will not see retrospection as a way of taking a more relaxed approach to drafting legislation. On the whole they are diligent in drafting legislation and we want that to continue.

We discussed today the breadth of powers in the Bill. I remarked earlier that tax advisers were surprised at the content of the Bill and the breadth of the measure. In its report on the 2004 pre-Budget report the Treasury Committee, commenting on the Paymaster General's statement on 2 December 2004, stated:

"The indication in this statement that the Government will continue to announce proposed legislation, effective from the day of the announcement, to stop schemes which come to their attention is nothing new."

Indeed, we touched upon the Rees rules, which relate to that. The Treasury Committee went on:

"What is new is the declaration that future schemes, not yet devised or which have not yet come to the Inland Revenue's attention, may be stopped as from 2 December 2004. This amounts to a general anti-avoidance rule in this area of taxation of income and rewards, although no new powers are being taken by government."

So, in the Committee's view, the very thing that the Government had backed away from—introducing their disclosure rules in the Finance Act 2004—because of criticism from the tax law review committee at the Institute for Fiscal Studies and comments from the Chartered Institute of Taxation, they seemed to have backed towards. We need to look again at how the legislation works.

The Paymaster General spoke of the importance of making sure that the proper or right amount of tax is paid. In seeking to extract that, how do the Government distinguish between planning, mitigation and avoidance? There is a spectrum. If people are following the law, at what point do the Government intervene to tackle avoidance issues? We will need to consider that. The Paymaster General referred to the process for scrutinising secondary legislation, and that may give us the opportunity to do so in Committee when those statutory instruments are laid. Taxpayers have a right to expect that the tax law on the day on which they undertake a transaction will continue to apply to that transaction going forward.

The third and final issue that I shall comment on is the delay between primary and secondary legislation. Primary legislation tackles the PAYE and income tax aspects of a contrived scheme. Under the Bill the consequent national insurance secondary legislation can come forward so that amendments made to income tax legislation to close down avoidance schemes can be used in national insurance legislation to close down similar loopholes.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

Is the hon. Gentleman suggesting that he favours a move to a portmanteau Finance Bill that covers national insurance, because national insurance is no longer the responsibility of the Department of Social Security, which is now the Department for Work and Pensions, or is he content to continue with dual-track Bills—Finance Bills and national insurance Bills?

Photo of Mark Hoban Mark Hoban Shadow Minister (Treasury)

As ever, the hon. Gentleman has made a pertinent and thought-provoking point. Some have suggested that national insurance and pay-as-you-earn are coming closer and closer together and that a distinction should not be drawn between PAYE and national insurance as a way of funding contributory benefits. I am not sure whether PAYE and national insurance should come together. My hon. Friend Mr. Osborne has set up a commission under the chairmanship of Lord Forsyth to review the tax system. It will consider simpler taxes and may examine that area, on which I do not want to comment today.

The delay between primary and secondary legislation relates to my earlier point about the different origin of national insurance contributions, and national insurance has taken some time to catch up since its management by a separate Department. The Bill allows for a 12-month delay between primary legislation and statutory instruments coming into force.

Photo of Dawn Primarolo Dawn Primarolo Paymaster General (HM Treasury)

The Bill does not allow for a 12-month delay—it says that statutory instruments must come into force within 12 months, which is quite different.

Photo of Mark Hoban Mark Hoban Shadow Minister (Treasury)

The secondary legislation may be delayed for up to 12 months, although it does not have to be delayed for that period. I am grateful for the Paymaster General's clarification that it may be delayed for up to 12 months.

The Bill also allows statutory instruments to come into effect 12 months before they are laid. I know that that issue was raised in Standing Committee by my hon. Friends, so I am grateful for the Paymaster General's reassurance, first, that such statutory instruments will be subject to the affirmative resolution procedure and, secondly, that she will work to ensure that all the regulations relating to the closure of schemes both for PAYE and national insurance will be published at the same time. I am sure that those who take an interest in such matters will welcome that assurance, because it will make scrutiny far easier.

Retrospection has concerned us during many debates on the Bill. There is a concern that it may become widespread and institutionalised, and its use raises several issues. We must ensure that such measures do not become institutionalised, so that the quality, credibility and predictability of our tax system is not undermined.

Photo of Vincent Cable Vincent Cable Shadow Chancellor of the Exchequer, Liberal Democrat Spokesperson (Treasury) 5:22, 15 December 2005

There are important elements of consensus and agreement on the Bill, but there are also some elements of disagreement, and the Paymaster General has obviously found it difficult to get her head around the fact that we take that nuanced view.

On consensus, I shall repeat the point that I made on Second Reading, which the Paymaster General has already quoted—the Government should take reasonable steps to stop people creating complex tax avoidance schemes, in this case in relation to national insurance, which is obviously right because of general revenue concerns. We supported increased national insurance contributions to fund the health service, and we do not resile from that. The measure is also obviously right given the general principle of fairness—most of us pay our dues, and it must be right for the Treasury and the Inland Revenue to act against those who do not.

The problem, which Liberal Democrat and Conservative Members have expressed, concerns the general principle of retrospective legislation. Again, that principle is not absolute, because, as the Minister has said, retrospective action has been taken in the past on tax matters—it is part of history. As the European Court of Justice has stated—I have quoted it today, and I quoted it on Second Reading—there are certain cases in which it is proper to apply retrospective measures, so we are not dealing absolute moral principles.

However, we need to take account of the concerns that have been expressed. The Institute of Chartered Accountants is not in the business of promoting the interests of fat cats but of preserving the basic principles of tax law and maintaining its fundamental integrity. It has raised serious worries about this aspect of the Bill, and it is only proper that we should echo those. I would summarise the problem by saying that there are, of course, certain circumstances in which retrospective action is necessary in the tax world, but there need to be checks and balances. One of the useful amendments that was tabled was designed to achieve that, which is why we supported it.

I have looked back at the comments by my hon. Friend Chris Huhne to which the Minister took exception. I find it difficult to see why. He was merely reiterating what I had said on Second Reading—that there are worries about the principle of retrospective action. He pressed the Minister on several occasions to give an estimate of the tax revenue that would be involved. Clearly, we need to talk about real numbers. If vast amounts of revenue are involved one takes a slightly different view of a major legal principle being challenged than one would take if it was to secure very small amounts of revenue. My hon. Friend repeatedly asked what amount was involved, and we ended up with a scale that ranged from £250 million down to nought. No estimate was produced. He therefore rightly voted for sceptical amendments criticising the application of retrospective legislation in this case.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

The hon. Gentleman says that Chris Huhne pressed for some figures but did not get any. There are figures in the regulatory impact assessment and in the explanatory notes. I appreciate that the hon. Gentleman and his hon. Friend may not find those figures credible—that is an intellectual possibility—but his suggestion that we were given no figures surprises me.

Photo of Vincent Cable Vincent Cable Shadow Chancellor of the Exchequer, Liberal Democrat Spokesperson (Treasury)

I have merely read through the transcript of the Committee—I was not there at the time, unfortunately. There was a simple and in no sense politically loaded request for clarification of the revenue position in light of the fact that the proposals covered part of a tax year. It may well be that the answers that we were seeking were in the regulatory impact assessment and did not need any explanation or clarification from the Minister, but the exchange that I read was unsatisfactory, and that is what led to my hon. Friend speaking and voting as he did.

My final point concerns a basic element of tax policy. We keep getting pieces of legislation that are designed to plug loopholes, and it is sometimes necessary to ask why so much avoidance takes place. Some of it must be due to the extreme and growing complexity of tax legislation. One of the most interesting contributions in the Committee was made by Mr. Field, who forcefully made the point that he was discussing a Bill designed to plug a tax loophole that was in large part generated by the vast ramifications of the complexity of tax law that the Government are creating. He makes an entirely valid point. We should stress that the more complex tax legislation becomes, the greater the incentives and opportunities for tax avoidance, and the more legislation is required to deal with it.

I reiterate my first and major point that the principle of preventing people from creating complex tax avoidance measures to avoid paying national insurance must surely be right. It is only regrettable that we have not had the necessary safeguards on the retrospective application of the legislation.

Photo of Brooks Newmark Brooks Newmark Conservative, Braintree 5:29, 15 December 2005

As the Paymaster General knows, I have been involved in the process from the beginning and I have been impressed with her deft way of not answering questions. Several remain unanswered and I should like her to deal with them.

First, does she believe that making a written statement in December 2004 was sufficient to make the proposals clear and plain to those who might be affected by them? Was her statement intended to create a precedent for other retrospective legislation?

Secondly, will the Paymaster General give full details of just two out of the 100 schemes that she told us on Second Reading were so offensive that they should be stopped retrospectively?

I acknowledge that retrospective tax legislation is not a new concept but it has previously required specific primary legislation to avoid being ultra vires. Clause 1 will allow the Treasury to pass subordinate regulations if and when needed. Does not that sound the death knell of legal certainty for tax planning purposes? Does the Paymaster General believe that the benefits of the measure outweigh the potential costs?

Has any assessment been made of the potentially harmful consequences that the Bill might have for international businesses' decisions about whether to establish themselves in this country given what might be interpreted as an increase in the Government's use of retrospective taxation?

The Bill should address the cause of the disease in the tax symptom, not the symptom itself. The disease is the complexity of taxation and the lack of clear response to legitimate tax planning. There is a continuum between legitimate tax planning that we all undertake and the notion that a few people are behaving illegally or illegitimately to escape their fair share of the burden of taxation. The Bill does nothing to tackle the undoubted uncertainty about the frontier of legitimate activity. The measure will compound rather than resolve the uncertainty.

Question put and agreed to.

Bill accordingly read the Third time, and passed.