Clause 43 - Land transactions

Finance Bill – in a Public Bill Committee at 10:30 am on 3rd June 2003.

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Photo of Mark Prisk Mark Prisk Shadow Paymaster General 10:30 am, 3rd June 2003

I beg to move amendment No. 4, in

clause 43, page 30, line 7, leave out from 'provision' to end.

Welcome to the Chair, Mr. Gale, after our pleasant break, during which some of us felt like GCSE students. I suspect that the Chief Secretary and I shared that delight in making sure that we were intimate with every aspect of the Bill. I welcome the Chief Secretary to his place, and I am sad to hear that there may be a clash of business on Thursday Naturally, if the Economic Secretary wanted to get into the saddle then, we would be more than happy to play ball.

Before I refer to the amendment, I draw the Committee's attention to my entry in the Register of Members Interests. Hon. Members who have not recently referred to it may not know that I am a non-practising chartered surveyor, although it would probably be more accurate to say that I am an out-of-practice chartered surveyor. That means that I am a member of the Royal Institution of Chartered Surveyors, the leading property professional body, to which, among many other august bodies, I shall refer. It is important that the Committee is aware of that interest, which I put on the record for its benefit.

Clause 43 introduces one of the most fundamental changes that the new stamp duty land tax represents—the taxation of land transactions. The clause thereby replaces a 200 or 300-year-old stamp duty, which is not a tax on land transactions, but a charge on documents. I hope to consider the clause in its entirety later in a clause stand part debate, and I shall for now restrict my remarks to amendment No. 4.

The amendment would delete from subsection (2) the words ''by operation of law'' and is intended to probe the reasoning and intent behind the clause. At present the subsection reads:

''Except as otherwise provided, this Part applies however the acquisition is effected, whether by act of the parties, by order of a court or other authority, by or under any statutory provision or by operation of law.''

Subsection (2) is therefore remarkably wide in its scope. Unfortunately, that is typical of this whole part of the Bill, which deals with the stamp duty land tax, in that it involves over-reliance on sweeping powers and scope and overuse of vague language. The problem with that rather crude approach is threefold. First, the lack of clarity creates needless uncertainty for taxpayers. Secondly, the danger of unintended consequences is substantially increased. Thirdly—this is surely a concern from the Government's point of view—such an approach actually undermines measures to restrict tax avoidance.

Amendment No. 4 would remove the phrase ''by operation of law''. Many legal and other professional experts fear that the clause will adversely affect people whom the Government do not intend to hurt. Let us take as an example two people who are not married—perhaps a sister and brother—living together in, and jointly owning, a house. It appears that when one dies, the survivor would be liable to the new tax. That is not the case under the existing stamp duty, but it could be the case under the Bill.

Will the Chief Secretary make it clear who would and who would not be liable in such circumstances, and will he identify which transactions that are not chargeable under existing arrangements for stamp

duty will be liable to this tax? Will he also say how much additional revenue these specific transactions—not overall transactions—would generate in a full year, excluding, obviously, anti-avoidance measures?

This is a simple, probing amendment. Its purpose is to help us to examine the subsection with care. I hope that the Chief Secretary is able to provide the clarity that is lacking and which potential taxpayers will seek. If he can do that, I would be prepared to consider withdrawing the amendment, but, naturally, we shall want to hear what he has to say and the conclusions of the debate.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Before we proceed, may I say that the debate has already gone slightly wider than the amendment? I have absolutely no problem with that, as those who have served under my chairmanship will know. As far as I am concerned, the Committee can have a stand part debate at the beginning of a clause or at the end, but it cannot have both. Therefore, if the Committee chooses now to widen the debate to embrace the stand part debate, that is all right by this Chairman. However, please understand that I am likely to rule later that there should not be a stand part debate.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I welcome you, Mr. Gale, and the Chief Secretary. I shall take up the invitation to widen the debate slightly, particularly in the light of comments that have been made on the clause and the very wide definition of ''purchaser''.

The Law Society of England and Wales suggests that it would be of considerable assistance to delete the words ''or is a party to'' from subsection (5). I hope that the Chief Secretary will consider that. The provision makes the tax bite extremely widely. For example, if a lessee requires a landlord's consent for the grant of a sub-lease and, as a result of consent being given, there is an increase in the value of the landlord's interest—that would be possible if the outgoing sub-tenant were a company of straw or a company of less value, and if the incoming sub-tenant were a FTSE 100 company, which would be a valuable tenant—that would constitute an acquisition of a chargeable interest under clause 3(3)(c)(i) by the landlord, who would become a purchaser, notwithstanding the fact that he had given no consideration. In those circumstances, the landlord and lessee would be treated as joint purchasers under clause 103, and the landlord would be jointly liable for any stamp duty land tax chargeable on the lessee, even though the landlord had paid no consideration. I am anxious for the Chief Secretary to put on the record his views of the operation of the clause in the light of those points.

I reiterate what the hon. Member for Hertford and Stortford (Mr. Prisk) said. The tax has a long history—I think that the hon. Gentleman said some 200 to 300 years. It was a voluntary tax in many ways. People did not have to pay it, but they could not register a property if they had not stamped the written documents, and they could not litigate on any document that required stamping.

Photo of George Osborne George Osborne Opposition Whip (Commons), Shadow Minister (Treasury)

The hon. Gentleman says that the tax was voluntary. The American colonists did not think so when the stamp duty was imposed on them. It led directly to the American revolution.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I regret that my knowledge of that aspect of history is incomplete. I can tell the hon. Gentleman only that unless a document was stamped, it could not be exhibited in court. In addition, people could not register their title if the property was unregistered.

The tax was presaged by a momentous debate on electronic conveyancing in Westminster Hall on 9 November 2000, for which I was fortunate enough to draw the short straw. The Government spokesman was Mr. David Lock, the former Member for Wyre Forest and an able Minister, who, regrettably, is not still with us.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

Indeed.

A system of electronic conveyancing is going to be introduced. There will be substantial changes in stamp duty law. The message that I receive from the professional bodies and other practitioners is that there has not been sufficient scrutiny of the effects of the legislation, and that there is a lacuna. Let us hope that we hear some reassurance from the Chief Secretary and that we have adequate time to debate and scrutinise far-reaching changes to the law.

Photo of Ann McKechin Ann McKechin Labour, Glasgow Maryhill

I want to raise a question about how the clause will affect leases in Scotland, where there is a principle of tacit relocation. I declare an interest: I am a member of the Law Society of Scotland—[Interruption.]

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. Conventions that apply on the Floor of the House do not apply in Committee. It is possible to pass notes between civil servants and those on the Floor, but not to engage in conversations.

Photo of Ann McKechin Ann McKechin Labour, Glasgow Maryhill 10:45 am, 3rd June 2003

The application of tacit relocation is that if neither party gives due notice of its intentions to end at the expiry of the terms, the lease is continued by tacit relocation on the old terms, except with reference to duration. In that respect, if the lease was for less than a year, continuation for the same period is inferred. If it was for more than a year, it continues on a year-by-year basis. It is not clear whether renewal of a lease by tacit relocation is the acquisition of a chargeable interest within the meaning of the clause, and I would be grateful if my right hon. Friend the Chief Secretary would clarify that when he replies and confirm that, in such circumstances, leases renewed by tacit relocation will not be covered.

Photo of Michael Jack Michael Jack Conservative, Fylde

I, too, remind the Committee of my business interests, particularly my non-executive directorship of a retail tile company that has a property interest. I felt that the Committee should know that before I started to speak.

I am concerned about the speed with which the measures from clause 43 onwards have been brought before the Committee. When challenged on Second

Reading, the Chief Secretary said, as I recall, that there had been no edict from the Inland Revenue, the Treasury or Treasury Ministers that consultation on such matters should be stopped. However, I hear that such an edict was put out. Given that my hon. Friend the Member for Hertford and Stortford has already moved a probing amendment, will the Chief Secretary tell us exactly how the initial consultations on the matter were curtailed? I understand that further consultation has begun. If that is the case something must, by definition, have ended for a second go to begin. I am sure that the Chief Secretary will be only too happy to enlighten the Committee about that with his usual bonhomie.

It is clear from the representations received on the clause and other parts of stamp duty land tax that the Law Society of England and Wales has expressed considerable concern at the speed with which the measure has been introduced. It was supposed to be a fundamental change to a 300-year-old tax, as my hon. Friend said. The fact that it has been introduced with such speed makes one question why so many amendments have been tabled to this and other clauses.

We appear to be on shifting sands because the Treasury and Revenue are still in consultation about certain elements of the provision, while we are being invited to put unfinished business into law. Will the Chief Secretary explain why the Committee is being invited to begin that voyage when it does not know where it will end up? Normally, one has a complete piece of legislation. The tax is effectively brand new, and the Treasury has not finished its job of mapping out the territory over which it is to be introduced.

The clause deals with land transactions. If the lease is connected with a transaction in land, which in most cases is effectively an opportunity to occupy a building, not to acquire it, will the Chief Secretary tell us why that is included as a land transaction? That raises some interesting questions. Leases are a modern way for people without initial capital to purchase an asset and to acquire the use thereof under the stated terms. I know of no other aspect of leasing in which a transaction tax is effectively levied on the asset. That set of circumstances applies uniquely to land. I appreciate that that is so because history has made it such, but this is a new tax. An element of history is being reconfirmed by virtue of the clause.

I am also interested in the wider context of clause 43 and its revenue-raising ability. Will the Chief Secretary explain the effect during the first year of the clause and others associated with it, and give us a breakdown of the extra revenue gained because the measure deals with avoidance, because it is a tax on such transactions, because the price of property has increased and because of the new formulation touched on in the clause and subsequent parts of the Bill. It would be a great help to the Committee to have that type of background information, so that we can form a proper view on the direction that the Government are taking.

Finally, the clause talks about ''transactions'' in tax. I am sure that the Chief Secretary will have examined every detail, because they will all have been

furnished to him, so can he tell us whether this is a new transaction tax? It was my understanding—I may be wrong, so I put my hands up and plead that I am wrong before I say what I am about to say—that member states of the European Union were allowed to have only one transaction tax. If that is the case and this is a tax on land transactions, perhaps the Chief Secretary can help me to understand why we appear to have two.

Photo of Norman Lamb Norman Lamb Shadow Spokesperson (Treasury), Liberal Democrat Spokesperson (Treasury)

Welcome to the Chair, Mr. Gale. I, too, declare an interest. I am a member of the Law Society and shall refer at various stages to its submissions on these provisions.

We share the concerns expressed by the hon. Member for Hertford and Stortford. The scope of the provisions seems very wide, and there is a clear over-reliance on regulation to be tabled in due course, which leads to inadequate scrutiny of the detailed provisions. That is not good law making. It is not the right way to proceed with a substantial new body of law that introduces new obligations on taxpayers. Moreover, the language used in this and other clauses is vague in a number of ways, which again does not give the citizen certainty.

Several professional bodies have said that the Bill contains an incomplete set of provisions. Substantial areas remain to be dealt with, such as subsale relief, the treatment of leases, the transfer of land into partnership and complex commercial transactions. It seems extraordinary that the Government are introducing so many incomplete provisions, leaving so much of the detail still to be fleshed out. We hear from other hon. Members about the extent to which consultation has restarted, and the position has been described as one of shifting sands, which does not make for good law.

I urge the Chief Secretary to respond to those concerns and to give us specific examples of what the phrase ''by operation of law'' covers. There is a great deal of concern, not only in this Room but among professional bodies that deal with this law all the time, and it is incumbent on the Government to try to address that concern.

Photo of George Osborne George Osborne Opposition Whip (Commons), Shadow Minister (Treasury)

It is a pleasure to serve under your chairmanship, Mr. Gale. Taking up your invitation to have a slightly broader debate now, I wish to express my broad concerns. As has been said, stamp duty is a very old tax. Although the tax that is being introduced is called a stamp duty land tax, it is not stamp duty as originally conceived; the Government have used the name to conceal the fact that it is a brand new tax. It is not a charge on the imprint of a Government mark on documents, which the tax historically was. As I said in my intervention on the hon. Member for Torridge and West Devon (Mr. Burnett), that was what led directly to the American revolution. I hope that the Chief Secretary does not share the fate of Lord Grenville, who introduced stamp duty to America. I want the right hon. Gentleman to be present at Thursday's Cabinet discussion on the euro, which is why we shall have to reschedule our sittings.

My first concern is about consultation. All Committee members will have received many letters

from people in our constituencies and from the various representative organisations saying that they have not been properly consulted, that consultation was broken off, that this is a complex and novel form of taxation and that they have not had a chance to have their say and make their points. I share the concern already expressed that much of the detail of the tax—the devil is in the detail, as we all know—is unknown to us at this stage.

I very much share the concern of my right hon. Friend the Member for Fylde (Mr. Jack) about the revenue implications. The tax has been presented to the Committee as a measure to prevent tax avoidance, but the Government expect to raise large sums of money as a result—from memory, I think they expect between £350 million and £450 million in the first couple of years. Can the Chief Secretary tell me whether those large sums arise strictly from closing tax avoidance loopholes, or is this really a stealth tax, which is how the commercial property sector views it? That sector will see its tax burden go up considerably. I should like to see the breakdown for which my right hon. Friend asked the Chief Secretary.

I am not an expert on EU law, sadly, but, as I understand it, the EU allows only one transaction tax. When the Labour Government wanted to abolish VAT on fuel in 1997, they could not do so, because tax harmonisation law covers transaction taxes. They therefore had to drop VAT to 5 per cent. rather than to 0 per cent., as they had promised. It would be interesting to know how clause 43 fits in with EU law.

I have a feeling, as do many others, that this tax is based on a false idea that entering into a lease is somehow a tax avoidance measure, when it is, in fact, a way in which many companies that are not in the commercial property business and do not have large up-front sums of capital can legitimately rent property. A perfectly legitimate commercial property market provides that service.

This very complicated tax seems, to me and to others, to be being rushed in. If the Chief Secretary seriously believes that the old stamp duty regime is antiquated and inadequate, why does he not introduce a much simpler form of property tax of the kind found in many other countries? Why is he going through all these hoops and jumping over all these hurdles to introduce what he calls a stamp duty land tax but which has nothing to do with stamp duty?

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

By engaging with the amendment, hon. Members have clearly widened the debate. I take your guidance, Mr. Gale, and I assume that that will allow me to take my thoughts a tad wider.

The debate has been fascinating, because contributions from both sides of the Committee have shown that the language used and the extraordinarily wide scope of the provision undermine the effectiveness of the legislation that the Government seek to introduce. As hon. Members have shown, the provision to which the amendment refers goes back many years. Yet the process of consultation has been

rushed through in a few months, in spite of the Chief Secretary's non-verbal denials.

For a tax to work effectively, it must have the confidence of the lawful majority. In ''Modernising stamp duty'' the Financial Secretary to the Treasury sets out clearly the objectives of the consultation—fairness and a reflection of modern commercial practice. The worry is that the Bill achieves neither of those aims, which we and professionals in the market support.

Hon. Members have highlighted the disappointments for many people. People are disappointed about the slab effect and the significant tax increases for lessees, which my right hon. Friend the Member for Fylde discussed. We shall later discuss the question of a tax on tax, but I shall not stretch your patience any further on that Mr. Gale.

I say in all sincerity that following what people perceive to be botched consultation, the overwhelming view of the experts is that the clause is ill conceived and ill considered. Given that another £350 million of revenue will be drawn in from those affected, the feeling is that the clause is not modernisation of an old duty, but another stealth tax from new Labour. That is the genuine feeling of people outside the House.

I have several questions that relate to those raised by hon. Members and my hon. Friends. An excellent question was asked about the impact of the clause on small businesses. I hope that the Chief Secretary will reply to that, particularly as it affects leases. One question referred to the cost breakdown. How much will it cost the different sectors? What is the breakdown for next year of the additional £350 million? I am sure that the Chief Secretary will have the answer to hand.

Most pertinently, and presciently—as always—my right hon. Friend the Member for Fylde referred to the EU sixth directive. Hon. Members may determine that I am a sad individual, but, as one does when considering such matters, I tucked into the joyous orange tax book. It sets out clearly what the sixth directive includes, and in particular, the reference in article 33 to how the EU actually works. Will the Chief Secretary tell the Committee whether the new tax is fully compatible with our treaty obligations, whether those are in the sixth directive or elsewhere? Will he bring to the Committee's attention the legal advice that he has received on that and put it on the record that the tax is legal and does not require any subsequent affirmation by Brussels?

If I may stretch the Committee's interest a little further, I have a couple of other brief points. The word ''acquisition'' is in the first line of the clause. That appears straightforward, but perhaps the Chief Secretary can help me. The clause includes the creation, surrender or variation of a chargeable interest. That is fair enough. I assume that it includes the granting of a right of way or the agreement to a restricted covenant, but what about the release from a restricted covenant? Who would be charged for a lease or property right, such as that referred to by my hon. Friend the Member for Tatton

(Mr. Osborne), when that is varied? In other words, who is the purchaser in such a transaction?

On subsection (3)(b), several lawyers have highlighted the worry of double counting. That could lead to a double charge, if one took the meaning of the law as written in subsection (3)(b)(i) and (ii). Will the Chief Secretary comment on that and confirm that that is not his intention?

Subsection (5) states:

''A person is not treated as a purchaser unless he has given consideration for, or is a party to, the transaction.''

That implies that anyone who is a party to the transaction is a purchaser. Will the Chief Secretary confirm that that is not his intention?

The hon. Member for Glasgow, Maryhill (Ann McKechin) mentioned the applicability of the provision to Scotland and businesses there. Is the use of ''appurtenant'' or ''pertaining'' in subsection (6) intended to include only heritable rights, or is it intended to include non-heritable rights? For example, the right to fell trees with a lease of land is particularly relevant to Scotland, and I am grateful to the Law Society of Scotland for highlighting a point that I have to confess was not immediately obvious to me.

We have some grave reservations about the scope of the clause. The amendment would allow for clarity. I hope that the Chief Secretary will be able to answer our questions in order to set the record straight. If he is able to do that, we will consider withdrawing the amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon 11:00 am, 3rd June 2003

The explanatory notes outline the Government's reasoning for replacing stamp duty with the new tax—that is what it is. They state:

''Stamp duty is over three hundred years old and the legislation was last consolidated in 1891. It is a charge on documents that transfer property, and when duty is paid, stamps are still impressed physically on the document concerned. Unlike more modern taxes there is no provision for the tax to be collected directly from taxpayers by assessment.''

That says it all. It proves straightaway that we are talking about a new tax. The Government want to get at assessment. Stamp duty is about stamping documents and not about entering into negotiations with the Revenue. Let us have no doubt that this is not a cleaning-up exercise; perhaps it is, given the way in which the Government talk about cleaning-up exercises in relation to the EU constitution, but to my mind it is not a cleaning-up exercise. The clause drags new people into a new tax net. That is much more than simply considering anti-avoidance.

Hon. Members have repeatedly referred to the consultation that was launched as an initiative in last year's Budget. The Inland Revenue initiated a series of consultative committees to examine technical issues involved with the stamp duty reform programme. However, for some reason—the Government have not given any particular reason—all that came to an abrupt halt in January. It would be helpful if the Chief Secretary would tell us why that happened. One thing is for sure: all hon. Members have been bombarded by notes from professional organisations and people involved in the property industry. In that regard, I

would be interested to hear from the Chief Secretary exactly how many requests he has had for further consultation. I imagine that it is a substantial number. I pick one response from many. The Royal Institution of Chartered Surveyors believes that the Government have opened a Pandora's box in reforming lease duty in this fashion.

I want to go a little further into the objectives of the reforms, which were touched on by my hon. Friend the Member for Hertford and Stortford. The Government set out their objectives in their initial consultation document. They mentioned three main things. First, they mentioned fairness. The document stated that

''the Government is concerned about the increasing extent to which stamp duty is being avoided.''

However, the reforms go rather further. I understand that something like £350 million will be reaped in the first year, and that is only the start. I also have doubts about how the lack of consultation can be equated with fairness. Exemptions, such as the 2,000 disadvantaged areas, mean that places such as Holborn and Lincoln's Inn Fields will be subject to total avoidance of the clause. I do not see how such exemptions, and the amount of money that property developers will make, can be equated with fairness.

The second principle stated in the consultation document was e-business. It mentioned creating

''a regime that supports the Government's e-business agenda''.

How dragging e-business into the new tax will help budding technology entrepreneurs I know not. Again, I would be most grateful for the Chief Secretary's advice on how that is to be the case.

We come next to the Government's favourite concept. The third principle was modernisation. The document mentioned creating

''a legal framework for stamp duty in line with more modern taxes''.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

We do—new taxes! If the Chief Secretary can advise me how the new tax will modernise the transfer of properties in a way that is conducive to the conduct of business in this country, I would be much enlightened.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I join the hon. Member for Hertford and Stortford in welcoming you to the Chair, Mr. Gale. It is always a pleasure to serve under your chairmanship. Your latitude in matters sartorial and in respect of the breadth of debate are well known, as is your strictness in matters to do with the conventions of the Committee. You have already demonstrated that during the few minutes we have spent in consideration of the clause.

As I listened to the contributions of the right hon. Member for Fylde and the hon. Member for Torridge and West Devon, it seemed to one who has served on this Committee before that we had never been away. It is perfectly true that there are a few fresh faces—unfortunately, mine is not among them. Nevertheless, the whole tone of those speeches was all too sadly familiar.

I have a great deal of respect for the right hon. Member for Fylde, who served as a Treasury Minister in previous Administrations, but, to some degree, his criticisms of the Government were disingenuous. I must take issue with him and, I regret, with the hon. Member for Torridge and West Devon, on the consultation, because this Government, more than any of our predecessors, have engaged in consultation on a series of budgetary measures. I believe that that is almost universally agreed. After all, it was this Government who introduced the concept of the pre-Budget report and who time and again have sought to involve stakeholders in discussions on changes in taxation.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

No, let me get a bit of steam up. I feared that less charitable Opposition Members would make an accusation about consultation, so I had some research done. The right hon. Member for Fylde will appreciate that the research reveals that the consultation exercise on modernising stamp duty was one of the most intensive ever undertaken by the Inland Revenue. It engaged external consultees for some 280 hours. Those who serve on this Committee and who are required to consider this tax will understand the figure of 280 hours.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

No, I have not finished yet. Indeed, the consultation went beyond that, because officials from several Government Departments were engaged for some 310 hours. Such was the extent of consultation on the measure.

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

I am grateful to the Chief Secretary for giving way. In a similarly charitable tone let me say that, yes, the Government initiated consultation. If he listened carefully, he will know that we welcomed that. However, why on 21 January, without warning or explanation, did Ministers specifically instruct the Revenue to stop the consultation?

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury 11:15 am, 3rd June 2003

That canard has been raised on the Floor of the House. I hope that the right hon. Member for Fylde will be able to correct a misunderstanding among Conservative Front-Bench Members about the processes of Government. We had extensive consultation and, as a result of that listening process, it became clear that there were matters that had to be considered internally within the Government. The whole point of consultation is to tease out issues that require further consideration and reflection. That was done and, having teased out the issues, it was then for Ministers to consider the policy implications with civil servants.

Photo of Michael Jack Michael Jack Conservative, Fylde

The Chief Secretary has clearly considered the matter in great detail. [Interruption.] No doubt the pager that has just gone off will result in even more information. The director general of the British Retail Consortium wrote to the Financial Secretary on 19 February. Perhaps the Chief Secretary can explain why the letter states:

''Subsequently the consultation process between the Revenue and interested bodies was suspended.''

Why was it necessary for the director general to use such a term in his letter to the Treasury? He said not that it was concluded, or brought to a happy and satisfactory ending, but that it was suspended.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I thought that I had explained that; obviously, I have not succeeded. There was extensive consultation. As a result, issues were identified that required further consideration and reflection by civil servants and Ministers. Of course, it was not possible to continue with external consultation while that was taking place. The right hon. Gentleman knows very well that that is how government operates. To suggest that there is anything sinister in that—I am tempted to use the word ''silly'', but I shall not—exhibits a degree of paranoia on the part of Opposition Members, as if everyone is out to get them and to close down discussion. That was the furthest thing from our mind.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I do not think that it is paranoid or untoward to raise the fact that some major areas that have not been addressed were to be consulted on, including major, complex commercial transactions such as sales and lease-backs. What will happen on those matters?

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

We will address them in some detail when we reach that part of the Bill. I hope that the hon. Gentleman will agree that the Government have demonstrated that we are prepared to listen to the industry in order to get the legislation right. We are committed to doing that, and will continue to do it.

On sales and lease-backs, I believe that the hon. Gentleman will find many examples of our willingness to listen in order to ensure that we end up with a piece of legislation that does credit to the seriousness of the industry's purposes and intentions and to the need to safeguard the interests of the taxpayer. I hope that those aims are held in common by all members of the Committee.

Photo of George Osborne George Osborne Opposition Whip (Commons), Shadow Minister (Treasury)

I am enjoying the Chief Secretary's master class in government. I seem to remember that when the Labour party came into office, it said that it would make much less use of external consultants. While in Opposition, it ran a great campaign about the cost to the Conservative Government of using external consultants. Today, the Chief Secretary has boasted that the Treasury employed consultants for 280 hours. What did that cost?

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

The hon. Gentleman needs a master class, because he has confused consultees with consultants. To my knowledge, we did not pay for any of the 280 hours that external consultees were good enough to devote to the activity. I want to record our thanks to the external stakeholders who were engaged in the consultation for giving their time gratuitously to ensure that we ended up with legislation that was fit for purpose.

What I find difficult to understand in this attack on the consultative process is that it does not give credit to those who ensured that Ministers and officials could benefit from detailed discussions on a variety of issues. Those discussions were reflected in a final package of proposals announced in the Budget—for example, for

deciding the precise weight and structure of lease duty. Anyone engaged in that consultative process will tell Opposition Members how valuable it was.

Several hon. Members rose—

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. We all enjoy a certain amount of political knockabout, but even by my legendary standards of tolerance, we are going a trifle wide of the mark. It would be helpful if we now returned at least to the clause under discussion, if not to the amendment.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I shall do that immediately, Mr. Gale.

I shall begin by dealing with the important issue that Opposition Members raised—it reflects an obsession, but it is important nevertheless—about Europe and European legislation. EU rules limit use of turnover taxes. We have taken advice and are confident that stamp duty is not a turnover tax. Indeed, most EU countries have a charge on the acquisition of real estate.

The right hon. Member for Fylde raised an interesting point about the nature of a lease and seemed to question whether a lease was an interest in land. It is well established that a lease is an interest in land. Indeed, outside the environs of this Committee, I had a discussion with the hon. Member for Hertford and Stortford in which I bemoaned the fact that, as an adolescent—I was fresh-faced then—I had to spend a year studying land law prior to 1925. Indeed, the first time that I have ever been called on to make any use of what Professor Hornby and others taught me has been in the course of preparing for this debate. Amongst all that one learned about advowsons, transfers of manners and the like, one learned that the very first section of the Law of Property Act 1925 made it clear that a lease is an interest in land. That has been recognised for many years, and, indeed, it is recognised by the existing stamp duty. I am surprised that the right hon. Member for Fylde should have raised that issue.

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

How fascinating it is to hear about the Chief Secretary's education. On that note, in terms of his legal education, he neatly tap danced—that is the best description I can give—through the tricky issue of the application of the law to the clause and this tax. He said that the sixth directive related to turnover taxes, but I see that the title includes the words

''a common system of value-added tax''

and ''transaction taxes''. Can the Chief Secretary elaborate further? Is the Bill compatible with all our treaty obligations?

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I assure the hon. Gentleman that it is compatible with our treaty obligations. As any Government would, we do all that we have to do to show that we are fully mindful at all times of our treaty obligations. We are satisfied, the necessary checks having been made, that that is the case in relation to the clause.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I hope that the Chief Secretary will draw further on his extensive knowledge of land law. He took me down memory lane when he referred to advowsons, because I once had the misfortune of trying to value one for the old estate duty purposes.

Will the Chief Secretary remind the Committee whether leases of all durations are interests in land?

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

The hon. Gentleman begins to trespass into an area that we will explore in due course concerning the distinction between leases and licences. I suggest that by applying the de minimis principle, any leases with which he is likely to be concerned relating to valuation, and any leases with which the Inland Revenue is likely to be concerned relating to the impact of the tax, are clearly interests in land.

Photo of Michael Jack Michael Jack Conservative, Fylde

Just for the avoidance of doubt, will the Chief Secretary confirm that leases whose value is dependent on the commercial performance of the enterprises using them are not caught as transaction taxes?

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

We will come to that in considerable detail in due course, but by the time we have finished, the right hon. Gentleman will be satisfied that the law is properly applied.

The amendment would exclude from the scope of stamp duty those land transactions that take effect by operation of law. The vast majority of such transactions are for no chargeable consideration, and, in those circumstances, no stamp duty land tax will be payable. I have been asked for examples, and they include acquisition of ownership by legal doctrine of adverse possession, the transfer of ownership from one joint owner to another following death by the legal doctrine of survivorship—the point specifically made by the hon. Member for Hertford and Stortford—and the acquisition of land by the operation of natural forces under the legal doctrine of alluvion or accretion. That will no doubt cause the heart of the hon. Member for Torridge and West Devon to miss a beat because it can create enormous difficulties in valuation when, over the years, a meandering river throws up silt that slowly and gradually causes a field to increase as the result of the dropping of sediment on its borders.

The Committee should understand that where there is a chargeable consideration for such a transaction, the stated policy in the legislation is to charge tax—as would be expected. That must make sense because we are seeking to apply the tax on substance rather than form. The tax is on transactions, not on documents, as stamp duty was. That is why, despite the smears of some Opposition Members, the clause is an act of modernisation. It recognises that, in the world in which we live, the transaction, not the document, should be subject to charge. Any other policies would allow avoidance, which we are determined to clamp down on.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I really must make some progress, then I shall give way.

The most obvious example of a transaction that takes effect by operation of law and for which there is, or may be, chargeable consideration is a surrender by operation of law. It is possible for a tenant to surrender a lease for a premium—that is, to sell the lease back to the landlord—without any documentation, simply by the tenant vacating the

premises and the landlord taking back the keys and handing the tenant a cheque. While that is no longer possible for registered leases—currently those for terms longer than 21 years—it is still possible for unregistered leases. If the consideration for the surrender of the lease is less than £60,000—£150,000 for non-residential premises—no tax will be payable in any event.

I am grateful to the hon. Member for Hertford and Stortford for saying that his was a probing amendment. I appreciate that it is so, but must say that it would allow landlords to buy back valuable leases from their tenants and avoid the payment of the stamp duty land tax that would otherwise be payable, which is clearly not the hon. Gentleman's intention.

That is one example of a transaction that takes effect by operation of law; another is foreclosure, when a mortgagee takes ownership of land mortgaged to him following the default of the mortgagor and the grant of a foreclosure order. Currently, stamp duty is payable on foreclosure orders. Although they are rarely used in practice, under the new regime foreclosures will, similarly, attract stamp duty land tax. If they did not, that would again result in the possibility of avoidance by the unscrupulous.

The hon. Gentleman asked specifically whether grants of right of way, grants of covenant and releases of covenant are chargeable. They are all potentially chargeable, but they would only rarely be subject to a charge. In my response to the amendment, I gave the hon. Gentleman the example of a surrender of lease for a sum of less than £60,000, or £150,000 for non-residential premises, for which no tax would be chargeable because of the nil rate band. In the case of a grant of a right of way or covenant or a release of a covenant there would be no doubt about who the purchaser was, if a larger sum was being paid. I assure the hon. Gentleman that there would be no need to report such transactions, because minor interests are not chargeable. That goes back to the de minimis point that I made to the hon. Member for Torridge and West Devon. I do not want to encourage him simply by mentioning his name.

I want to deal with the definition of ''purchaser'', because I know that that is of concern to the hon. Gentleman and a number of other right hon. and hon. Members and has been confirmed as a matter of concern by the Law Society of England and Wales. I am happy to give the reassurance that is sought to this extent. It is intended in these circumstances that two separate land transactions would have occurred, with the result that the landlord and the lessee would not be treated as joint purchasers and the landlord would have no liability to stamp duty land tax. Why is that?

In the specific example given by the Law Society of the wide definition of purchaser, the concern was that if the landlord and lessee were treated as joint purchasers under clause 103, the landlord would be jointly liable for any SDLT chargeable on the lessee, even though the landlord had paid no consideration.

Therefore, I can give the assurance that is sought. Revenue guidance will be issued in due course to confirm that. No amendment is required, because clause 103(1) makes it clear that the clause applies only if the purchasers will be jointly entitled to the interest acquired, and that is not the case in the example that the Law Society gives as the basis of its cause for concern about the wide definition of ''purchaser''.

My hon. Friend the Member for Glasgow, Maryhill asked a specific question about the law in Scotland. I am grateful to her for raising the issue because it is one of the few Scottish-specific issues on which the Inland Revenue is currently working with Scottish counsel and the Law Society of Scotland in order to ensure clarity. The matter relates to a unique feature of Scottish law, and it will be necessary to ensure that it is addressed. If amendments are necessary as a result of the dialogue that is taking place between the Law Society of Scotland, Scottish counsel and ourselves, they will be laid on Report. I give my hon. Friend that assurance. I am grateful to her for raising the matter in the manner that she did.

I want to address one matter—I hope that it will not be necessary to labour it—raised by the hon. Member for Huntingdon (Mr. Djanogly). I have heard the point about docklands before and I understand it. The relief is intended to help the most deprived areas of the United Kingdom. The indices of deprivation that we have used provide the best available evidence of disadvantage. No one seriously queries those indices, but, undoubtedly, in the example that the hon. Gentleman gave, there are pockets of great affluence amid areas of real disadvantage. Anyone who knows the area would recognise that, in those parts of real disadvantage, it is important that some relief is provided by the legislation. We will come on to the matter, so I do not want to stretch Mr. Gale's patience by going into it in any great detail now. I am happy to do so in due course, but I wanted to do the hon. Gentleman the courtesy of at least indicating that I had noted his point.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon 11:30 am, 3rd June 2003

I was merely asking how building skyscrapers in Docklands for people who are not local be of any use to anyone other than the property developers who get the exemptions.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

It is odd to have that charge put by right hon. and hon. Gentlemen from the Opposition, because the very reason given in the first place for the docklands development corporation, and for what amounted in the eyes of some local residents to parachuting such developments into long-established communities, was that the presence of such buildings and the affluent people who work and live in them would benefit the surrounding area.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

Out of the mouths of babes and sucklings. The reality is that that has happened in those areas.

Photo of George Osborne George Osborne Opposition Whip (Commons), Shadow Minister (Treasury)

The right hon. Gentleman opposed it at the time.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

It is possible, on occasions, to learn from experience. I strongly commend—but not too

strongly—that approach to Opposition Members, although they should take their time about it. It is important to learn from experience, and the experience in docklands has shown that those areas have benefited from the presence of businesses and, particularly, well-heeled residents. The measure recognises that there continues to be real deprivation in such areas, but we will return to that matter in due course.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. I ought perhaps to remind the Committee that clause 57 on disadvantaged areas relief was in fact taken on the Floor of the House and, therefore, will not be debated further.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I am grateful, Mr. Gale. It is unfortunate that I have been denied by circumstance the opportunity of dealing with the matter in as much detail as I would have liked. I remember well the long speeches of the hon. Member for Arundel and South Downs (Mr. Flight) and others who went on at some length. Had they not gone on as long as they did, we might have been able to deal with the matter.

Mr. Howard Flight (Arundel and South Downs) indicated dissent.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

Well, there is one of the main culprits. I do not wish to pursue the matter, but I hope that the point has been taken. Through your latitude, Mr. Gale, we now have an opportunity to consider the issue, albeit indirectly through our consideration of clause 43. I hope that hon. Members will accept that the aim of the relief is to raise standards in poorer areas surrounding pockets of wealth and advantage, so that they too can benefit from the investment that has been made and that is enjoyed by their more affluent neighbours.

Photo of George Osborne George Osborne Opposition Whip (Commons), Shadow Minister (Treasury)

My hon. Friend the Member for Huntingdon mentioned the Holborn area. Lincoln's Inn Fields is a particularly wealthy area in a deprived community. Will not the provision just create another loophole that property companies will exploit to build in areas that are already very affluent? As such, wealth would not spread to more deprived communities . The problem seems to be the rather crude determination of deprived areas by using postcodes.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. That is an interesting point, but I am not prepared to allow a debate on clause 57 by proxy.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

Thank you, Mr. Gale.

I wish to move on to deal with avoidance and loopholes. It has from time to time been suggested that the provisions are unnecessary and are really a stealth tax. Such suggestions do not do justice to what we seek to do in clause 43 and elsewhere in the measure. The fact is that the impact of avoidance schemes has been thoroughly detrimental to the interests of the ordinary taxpayer. We must close the loopholes and prevent a situation in which avoidance is given free rein.

I shall give a few examples, although there are many. An avoidance scheme that has been publicised as the double drop has been used to perpetuate special purpose vehicle avoidance by exploiting a loophole in the Finance Act 2002 clawback provisions. I see that the hon. Member for Hertford and Stortford is

familiar with it. I hope that he shares with me the belief that dealing with such avoidance schemes is a perfectly legitimate use of Executive power. [Interruption.] The double-drop method involves a transfer of land through two subsidiary companies before both are sold out of the group. [Interruption.]

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. I encourage hon. Members who wish to engage in private conversations to use the green benches outside the Room that the authorities have so thoughtfully provided.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

As the two subsidiary companies are still in a group on exit, no clawback is triggered. That was an avoidance mechanism. We closed that loophole in the existing stamp duty legislation with immediate effect from Budget day 2002. When land is transferred from A to B and B pays a consideration for the deal to A, but they do not complete their conveyance, that avoids stamp duty, which applies only to conveyances. The clause would prevent that by bringing contracts that are substantially performed into the charge. I do not think that Opposition Members are seriously suggesting that that is not a legitimate purpose.

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

The Chief Secretary knows perfectly well that Opposition Members are as determined as he is to ensure that illegal evasion and undue attempts to avoid legitimate tax commitments are dealt with by the Executive. That is entirely right and proper. Our critique in this amendment is about the vague language and wide scope, which create a loophole. That is the pertinence of the amendment, and I hope that the Chief Secretary will be able to come back to that.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I hear what the hon. Gentleman says. We will hold him and his right hon. and hon. Friends to that. If he is genuinely trying to help, he will recognise the spirit in which the provision has been introduced and will not attempt to describe it, as he has, as a stealth tax. He will also recognise that, far from being vague and uncertain, the clause sets out clearly and comprehensively the nature of the stamp duty land tax, its replacement of the current stamp duty on land and buildings and its renaming so as to distinguish between transactions that are subject to the reformed charge and those that remain subject to existing stamp duty.

Mr. Jack rose—

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

It seeks to do that in a way that is fairer and more modern. I believe that it creates a more robust tax regime for land and building transactions in the UK by addressing long-standing distortions and loopholes in the current charge, which have increasingly been exploited by big commercial players at the expense of the majority of taxpayers. Our concern remains for the many, not for the few. [Interruption.] Opposition Members do not like it, because that is the big distinction between them and us.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I think that I have been very generous. Having said what I have and on that note, which makes a clear distinction between them and us, I

commend the clause to the Committee and urge it to vote against any attempt to press this so-called probing amendment to a vote.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I am grateful to the Chief Secretary for his reasonably helpful comments on the ambiguity in subsection (5), especially in relation to the words

''or is a party to'',

but I believe that the Bill should be in plainer language. Notwithstanding what the Chief Secretary has said and the doctrine in Pepper v. Hart, I draw his attention to clause 103(1) and the words ''who are''. Those words cause ambiguity and uncertainty. I hope that the Chief Secretary will consider that point again, and on reflection will table a sensible amendment so that the legislation says what it is supposed to mean. Innocent parties, who are innocent by the Chief Secretary's admission, should not be caught by the tax in future.

Photo of Michael Jack Michael Jack Conservative, Fylde

In a way, I hope that the Chief Secretary does not reply to what I am about to say because then it will sit on the record. Had the Chief Secretary given way, I would have probed him a little further on the remarks he made on avoidance, and the comments in his winding-up speech about the double drop provision. I was going to ask him why—or if—all the special purpose vehicle arrangements that had been established to circumnavigate the old tax had been fixed in the new tax. That was part of the extensive consultation exercise to which the Minister referred.

In the 280 hours of intense, detailed and exacting examination of the measure that has led to such a comprehensive torrent of criticism, those special purpose vehicles were not dealt with. The impression that the Chief Secretary has given is that all the avoidance mechanisms were comprehensively dealt with. It is my understanding that that part of the consultation document to which the Chief Secretary referred—the modernisation of stamp duty—has not been enacted. If the Chief Secretary is trying to tell us that it is all a matter of avoidance, perhaps the words will hang on the record that the Chief Secretary was not prepared to tell the Committee why that part of the huge consultation exercise has not resulted in any provision in this clause or any other that deals with those avoidance vehicles.

Photo of Mr Howard Flight Mr Howard Flight Shadow Chief Secretary to the Treasury

May I repeat two specific questions to the Chief Secretary that he has not yet answered? Several of my colleagues made the point that the Government have said that they expect an extra £350 million of revenue in the first year and £450 million in the second. We have asked for a breakdown of that. We have received substantial representations, particularly from small and medium-sized businesses, which see the potential for fourfold increases in their liabilities.

Secondly, the Chief Secretary danced nicely over the issue of the European Union, but he confirmed in his words that the tax is a transaction tax. I do not have intimate knowledge of continental European equivalents, but my recollection is that the payment is analogous to the old stamp duty in the UK, and where

instruments comparable to leases are involved—to the extent that they exist—there is no form of transaction tax. I would be interested to know whether the Government have had appropriate discussions with the relevant European bodies to confirm that there is not going to be any objection raised by them to the provisions in the Bill.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

I call Mr. Prisk to wind up the debate.

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

It has been an interesting debate. I am grateful to members of the Committee, and to the Chief Secretary for his fascinating replies. I am grateful to him for trying to answer several of the questions raised. My colleagues have, however, identified several questions that were not answered. Sadly, the question on costs has not been answered.

Photo of Mr Paul Boateng Mr Paul Boateng Chief Secretary, HM Treasury, The Chief Secretary to the Treasury

I would like to respond to a number of points made by right hon. and hon. Members, but perhaps I should do so after the hon. Gentleman has finished making the points that he wants to put to me.

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

I am perfectly happy to listen to those responses later on.

One question raised by several colleagues that has not been answered concerns the terms ''appurtenant'' or ''pertaining to''. I am sure that the question of heritable rights has not slipped the Chief Secretary's mind, and that he will come to that among the other questions.

The central argument that we are trying to make in the amendment is that the Bill as drafted, particularly clause 43, produces uncertainty and allows for more tax avoidance, which contradicts the Government's aims. Our concern is that the combination of vague language and all-compassing clauses such as this one is self-defeating of the Government's aim. That is our concern. We share the Government's wish to tackle illegal attempts to avoid due tax liability, and we understand that. That is not our criticism. We are criticising the way in which the Bill has been introduced and, as hon. Members have said, the botched consultation—[Interruption.]

The Chief Secretary shakes his head and denies that the consultation was stopped unduly, but the truth is that every one of the professional bodies that responded to the consultation said that it was stopped arbitrarily. He referred earlier to Conservative Members being paranoid and silly, but we were repeating the concerns of the professionals. Were they paranoid and silly? I hope that the Chief Secretary can answer that.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. I called the hon. Gentleman to wind up the debate, but if the Chief Secretary wishes to respond, I shall allow him to do so. He does not, so I shall return to the hon. Gentleman.

Photo of Mark Prisk Mark Prisk Shadow Paymaster General

Having heard the Chief Secretary's comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on

the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 43 ordered to stand part of the Bill.