Capital Gains Tax

I beg to move,

That the draft Double Taxation Relief (Federal Republic of Germany) Order 2021, which was laid before this House on 15 March, be approved.

With this it will be convenient to discuss the draft Double Taxation Relief (Sweden) Order 2021, which was laid before this House on 15 March.

Both orders insert important provisions recommended by the OECD’s and G20’s base erosion and profit shifting project—BEPS—into existing double taxation agreements. For those Members who may, surprisingly, be unfamiliar with the BEPS project, it was an international effort to equip countries with the right domestic and international regulations to tackle tax avoidance. The BEPS provisions ensure that double taxation agreements fulfil their main purpose of facilitating global trade and investment. In addition, the provisions simultaneously limit the opportunity for the agreements to be used for tax evasion or avoidance.

Usually improvements to our bilateral double taxation agreements recommended by the BEPS project are made under a treaty commonly referred to as the multilateral instrument, which makes it possible to modify double taxation agreements in line with BEPS project provisions without the need for bilateral renegotiation. However, the domestic legal systems of both Germany and Sweden mean that it is much simpler for these countries to modify their double taxation agreements through amending protocols rather than through a multilateral treaty. As a result, the UK Government have agreed with both Germany and Sweden to implement these modifications through the protocols attached to these orders. These changes included introducing minimum standards to prevent avoidance through the abuse of tax treaties and improving the resolution of disputes.

The protocols with both Germany and Sweden give effect to the minimum standard on preventing treaty abuse. This is achieved by inserting a general anti-treaty abuse rule known as the principal purpose test into the double taxation agreement. Both protocols also changed the preamble of each double taxation agreement, which sets out its overriding purpose in order to clarify that the parties do not intend for the agreement to be used to avoid tax. The orders also make changes to the articles in both double taxation agreements that govern how disputes are avoided and resolved. These amendments ensure that the articles are in line with the minimum standard on improving dispute resolution. However, the Germany protocol implements a rule to prevent the artificial fragmentation of activities that might result in an overseas business avoiding a taxable presence. Sweden is not in favour of this provision, which is why it is absent from that protocol.

I am grateful for the opportunity to respond on behalf of the Opposition to the motion concerning these two statutory instruments.

The two orders bring into effect arrangements between the United Kingdom and Germany and Sweden, respectively, as set out in the bilateral protocol signed earlier this year. Both protocols amend existing arrangements between the two relevant Governments for the avoidance of double taxation and the prevention of fiscal evasion with regard to taxes on income and capital gains. We will not oppose the Government on this motion. The protocols that the motion seeks to bring in would give effect to certain provisions recommended by the base erosion and profit shifting, or BEPS, project to protect tax treaties against avoidance activities. As the Minister will know, we welcome any provisions to combat tax avoidance and evasion. However, I would appreciate his addressing in his response some important questions and concerns about how the changes are being introduced and their wider context.

First, the total parliamentary scrutiny of these changes comprises the current debate, which has three speakers and is unlikely to last more than half an hour. This differs greatly from the standard practice in other countries. In the United States, for instance, tax treaties must be considered by a fully staffed congressional committee. That raises an important question about transparency and accountability as we find parliamentary scrutiny lacking. Perhaps, however, we should not be surprised by this Government seeking to avoid scrutiny. Just last week, the Government voted down a Labour amendment to scrutinise the impact of their policies on tax avoidance and evasion. That sense of a lack of transparency is compounded by the fact that the explanatory notes on the orders simply paraphrase the treaty changes in largely technical language and, therefore, do little to elucidate the matter for a wider audience.

Inaccessible explanations are an obstacle to full, open accountability. The explanatory notes explain that the protocols will have

“no, or no significant, impact on business, charities or voluntary bodies.”

This is the first time I have stood to speak in the House since January 2020. During the past year and a bit, like so many of our constituents, I have been battling with the black dog of depression. I know that so many people have, and I crave your indulgence for a small moment, Madam Deputy Speaker.

Please, if you know somebody who has not been themselves recently, reach out to them, ask them if they are okay, let them know it is okay not to be okay. Offer them help but, most importantly, let them know that you are there when they are ready to talk, or if they are ready to talk. It is hugely important that all our constituents understand they are not battling this alone. There are so many of us.

I have a few questions on these two orders, and I am delighted that somebody else, the hon. Member for Ealing North (James Murray), has criticisms of the explanatory notes. I have got on my high horse about this. Do not worry, I could talk for 30 minutes—we could be here for far longer than that—but I promise I will not.

The explanatory notes are generally not very good. They do not give us enough information, and the specific issue of significant impact is a concern. The rules on explanatory notes in the “Ministerial Code” state what “no significant impact” means, but I would consider these orders to have a significant impact. The definition in the “Ministerial Code” needs to be broadened and, in general, explanatory notes for all Bills need to be better at explaining. We also need more impact assessments to be provided with Bills, because we need to know the impact on the public sector and the private sector, and on charitable organisations. The definition needs to be much wider than if a measure meets a certain threshold of millions.

The SNP supports these orders, and we look forward to the UK working more closely with other EU partners, including, in the future, an independent Scotland. On the tax evasion issues that may occur as a result, the UK, even though it has the treaty general anti-avoidance rules, still does not have a comprehensive general anti-avoidance rule for taxation. The SNP has stood on that platform, talking about it on a huge number of occasions, and it is unfortunate that the Government have not yet been willing to come forward with comprehensive regulation, particularly when HMRC is saying there was a tax gap in 2018-19 of £35 billion, which is 5.6% of the total tax liability. We need to have that rule.

I am sure the whole House will have heard what the hon. Lady said. She is courageous to give her advice here in the Chamber, and people would do well to listen to her advice. We are glad to see her back.

I very much thank the two hon. Members who have spoken in the debate. May I start, Madam Deputy Speaker, by associating myself very much with the remarks that you made to the hon. Member for Aberdeen North (Kirsty Blackman)? I think it is absolutely in order and right for her to bring this very important issue back to the House. To do so in such a personal way only gives it additional force. I doubt that there is a Member of this House whose own life has not been affected in one way or another by the concerns that she describes—the black dog of depression or whatever it may be—either personally or among their family or friends. The diversity of opinion in this House is something we all welcome, but so too should there be diversity in our recognition of other people and their feelings and suffering, so I very much thank her for that.

The hon. Lady raised a question that the hon. Member for Ealing North (James Murray) also raised about explanatory notes. Both Members will have seen that, actually, both these measures have quite full explanatory memorandums associated with them. Of course, there is always a balance to be struck between the depth and detail into which an explanatory memorandum goes and the desire not to provide so much detail that it becomes illegible or incomprehensible to a normal reader. I think the point is constantly right to be borne in mind that we should be as clear and explicit as possible on these matters. The point is very well made. It is a point that we have pushed very hard, and certainly I and colleagues have pushed very hard with Her Majesty’s Revenue and Customs in the work that it does more widely on guidance. In this case, because these measures sit alongside a host of other instruments, including the multilateral instrument, which was debated in the House, it is certainly true that there is a degree of scrutiny and awareness—or there could be a degree of scrutiny and awareness—associated with them.

The hon. Member for Aberdeen North also mentioned the question of a general anti-avoidance rule. I am sure she knows that it has been an important feature of our approach to double taxation agreements that we have included a principal purpose test in tax treaties, either through bilateral negotiation or through the multilateral instrument. That itself is a very important, wide anti-abuse measure, developed through the BEPS project, which protects a treaty against the abuse of its provisions. We are deploying it widely across double taxation agreements, and it has much of the force of the measure that she describes.

Will the Minister give way?

I am just winding up. If the hon. Lady does not mind, I will finish up. We will therefore continue to press forward on this issue.