Comparison of Divisions: Gurkha Settlement Rights — Government defeat — 29 Apr 2009 at 15:49 with Division No. 83 on 27 Mar 2007 at 23:36

The majority of MPs voted in favour of the motion:^[1]

• This House
• regrets the Government's recent statement^[2] outlining the eligibility criteria for Gurkhas to reside in the United Kingdom;
• recognises the contribution the Gurkhas have made to the safety and freedom of the United Kingdom for the past 200 years;
• notes that more Gurkhas have laid down their lives for the United Kingdom than are estimated to want to live here;
• believes that Gurkhas who retired before 1997 should be treated fairly and in the same way as those who have retired since;
• is concerned that the Government's new guidelines will permit only a small minority of Gurkhas and their families to settle whilst preventing the vast majority;
• further believes that people who are prepared to fight and die for the United Kingdom should be entitled to live in the country; and
• calls upon the Government to withdraw its new guidelines immediately and bring forward revised proposals that extend an equal right of residence to all Gurkhas.

As a consequence, the alternative Government motion, which read:^[3]

• This House
• recognises that this Government is the only one since the Second World War to allow Gurkhas and their families settlement rights to the United Kingdom;
• notes that in 2004 the Government permitted settlement rights to Gurkhas discharged since 1997, following the transfer of the Brigade HQ from Hong Kong to the United Kingdom;
• further notes that under these rules around 6,000 Gurkhas and family members have been welcomed to the UK;
• acknowledges that the court judgement of September 2008 determined that the 1997 cut-off date was fair and rational, while seeking clarification of the criteria for settlement rights for those who retired before 1997;
• further notes that on 24 April the Government published new and more generous guidelines for the settlement applications of Gurkhas who retired before 1997;
• supports this revised guidance, which will make around 10,000 Gurkhas and family members eligible to settle in the UK;
• further notes that the Government undertakes actively to inform those who may be eligible in Nepal of these changes and to review the impact of the new guidance within 12 months;
• further notes that the contribution Gurkhas have made is already recognised by pensions paid to around 25,000 Gurkhas or their widows in Nepal that allow for a good standard of living there; and
• further notes that in the year 2000 Gurkha pensions were doubled and that, earlier in April 2009, in addition to an inflationary uplift of 14 per cent., those over 80 years old received a 20 per cent. increase in their pension.

... was never voted upon.

Although this extremely rare Government defeat in an opposition day motion is not binding (has no legal force)^[4] a Government minister made a statement later in the day to bring "forward the date for the determination of the outstanding applications to the end of May."^[5]

• [1] Christopher Huhne MP, House of Commons, 29 April 2009
• [2] Phil Woollas MP, Written Ministerial Statement, 29 April 2009
• [3] Phil Woolas MP, House of Commons, 29 April 2009
• [4] Home Secretary Jacqui Smith blamed for humiliating Gurkhas defeat in the Commons, Daily Mail, 30 April 2009
• [5] Phil Woolas MP, House of Commons, 29 April 2009

Question accordingly agreed to.

14. Rates of climate change levy

Resolved,

That provision may be made about the rates of climate change levy.

15. Rate of aggregates levy

Resolved,

That provision may be made about the rate of aggregates levy.

16. Rate of landfill tax (2007)

Resolved,

That-

(1) In section 42 of the Finance Act 1996 (amount of landfill tax), in-

(a) subsection (l)(a) (the standard rate), and

(b) subsection (2) (reference to the standard rate taken to be £2 in cases of disposals of qualifying material), for "£21" there is substituted "£24".

(2) The amendments made by this Resolution have effect in relation to disposals made (or treated as made) on or after 1st April 2007.

And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.

17. Rates of landfill tax (after 2007)

Resolved,

That provision may be made about the rates of landfill tax.

18. Emissions trading

Resolved,

That provision may be made for the imposition of charges by the allocation of Community tradeable emissions allowances in return for payment.

19. Climate change levy (reduced-rate supplies etc)

Resolved,

That provision may be made amending Schedule 6 to the Finance Act 2000 in relation to reduced-rate supplies and exemptions.

20. Landfill tax (bodies concerned with the environment)

Resolved,

That-

(1) In section 53(4) of the Finance Act 1996 (credit: bodies concerned with the environment), after paragraph (c) there is inserted-

"(ca) provision for an environmental body to be and remain approved only if it complies with conditions imposed from time to time by the regulatory body or for the regulatory body to be and remain approved only if it complies with conditions imposed from time to time by the Commissioners (including provision for the variation or revocation of such conditions);".

(2) The amendment made by this Resolution comes into force on 22nd March 2007.

And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.

21. Managed service companies (earnings from employment)

Motion made, and Question put forthwith, pursuant to Standing Order No. 51(3) (Ways and means motions),

That-

(1) The Income Tax (Earnings and Pensions) Act 2003 is amended as follows.

(2) In section 7(5) (meaning of "employment income" etc), for paragraph (a) substitute-

"(a) Chapters 7 to 9 of this Part (agency workers, workers under arrangements made by intermediaries, and workers providing services through managed service companies),".

(3) In section 48(2) (workers under arrangements made by intermediaries: scope of Chapter) for the "or" at the end of paragraph (a) substitute-

" (aa) applies to services provided by a managed service company (within the meaning of Chapter 9 of this Part), or".

(4) After section 61 insert-

"CHAPTER 9

MANAGED SERVICE COMPANIES

Application of this Chapter

61A Scope of this Chapter

(1) This Chapter has effect with respect to the provision of services by a managed service company.

(2) Nothing in this Chapter-

(a) affects the operation of Chapter 7 of this Part (agency workers), or

(b) applies to payments or transfers to which section 966(3) or (4) of ITA 2007 applies (visiting performers: duty to deduct and account for sums representing income tax).

61B Meaning of "managed service company"

(1) A company is a "managed service company" if-

(a) its business consists wholly or mainly of providing (directly or indirectly) the services of an individual to other persons,

(b) payments are made (directly or indirectly) to the individual (or associates of the individual) of an amount equal to the greater part or all of the consideration for the provision of the services,

(c) the way in which those payments are made would result in the individual (or associates) receiving payments of an amount (net of tax and national insurance) exceeding that which would be received (net of tax and national insurance) if every payment in respect of the services were employment income of the individual, and

(d) a person who carries on a business of promoting or facilitating the use of companies to provide the services of individuals ("an MSC provider") is involved with the company.

(2) An MSC provider is "involved with the company" if the MSC provider or an associate of the MSC provider-

(a) benefits financially on an ongoing basis from the provision of the services of the individual,

(b) influences or controls the provision of those services,

(c) influences or controls the way in which payments to the individual (or associates of the individual) are made,

(d) influences or controls the company's finances or any of its activities, or

(e) gives or promotes an undertaking to make good any tax loss.

(3) A person does not fall within subsection (l)(d) merely by virtue of providing legal or accountancy services in a professional capacity.

(4) A person does not fall within subsection (l)(d) merely by virtue of carrying on a business consisting only of placing individuals with persons who wish to obtain their services (including by contracting with companies which provide their services); but this subsection does not apply if the person, or an associate of the person, does anything within any of paragraphs (c) to (e) of subsection (2).

61C Section 61B: supplementary

(1) The Treasury may by order provide that persons of a prescribed description do not fall within section 61B(l)(d).

(2) An order under subsection (1) may be made so as to have effect in relation to the whole of the tax year in which it is made.

(3) In section 6IB and this section, "company" means a body corporate or partnership.

(4) References in section 6IB to an associate of a person ("P") include a person who, for the purpose of securing that the individual's services are provided by a company, acts in concert with P (or with P and other persons).

(5) In section 61B(2)(e), "undertaking to make good any tax loss" means an undertaking (in any terms) to make good (in whole or in part, and by any means) any cost to the individual or an associate of the individual resulting from a relevant provision, or a particular kind of relevant provision, applying in relation to payments made to the individual or associate.

(6) In subsection (5) "relevant provision" means-

(a) a provision of the Tax Acts,

(b) an enactment relating to national insurance, or

(c) a provision of subordinate legislation made under any such provision or enactment.

The deemed employment payment

61D Worker treated as receiving earnings from employment

(1) This section applies if-

(a) the services of an individual ("the worker") are provided (directly or indirectly) by a managed service company ("the MSC"),

(b) the worker, or an associate of the worker, receives (from any person) a payment or benefit which can reasonably be taken to be in respect of the services, and

(c) the payment or benefit is not earnings (within Chapter 1 of Part 3) received by the worker directly from the MSC.

(2) The MSC is treated as making to the worker, and the worker is treated as receiving, a payment which is to be treated as earnings from an employment ("the deemed employment payment").

(3) The deemed employment payment is treated as made at the time the payment or benefit mentioned in subsection (l)(b) is received.

(4) In this Chapter-

"the worker" has the meaning given by subsection (1),

"the relevant services" means the services mentioned in that subsection, and

"the client" means the person to whom the relevant services are provided.

(5) Section 61F supplements this section.

61E Calculation of deemed employment payment

(1) The amount of the deemed employment payment is the amount resulting

from the following steps-

Step 1

Find (applying section 6IF) the amount of the payment or benefit mentioned in section 61D(l)(b).

Step 2

Deduct (applying Chapters 1 to 5 of Part 5) the amount of any expenses met by the worker that would have been deductible from the taxable earnings from the employment if-

(a) the worker had been employed by the client to provide the relevant services, and

(b) the expenses had been met by the worker out of those earnings.

If the result at this point is nil or a negative amount, there is no deemed employment payment.

Step 3

Assume that the result of step 2 represents an amount together with employer's national insurance contributions on it, and deduct what (on that assumption) would be the amount of those contributions.

The result is the deemed employment payment.

(2) In step 2 of subsection (1), the reference to expenses met by the worker includes, where the MSC is a partnership and the worker is a member of the partnership, expenses met by the worker for and on behalf of the partnership.

(3) In step 2 of subsection (1), the expenses deductible include the amount of any mileage allowance relief which the worker would have been entitled to in respect of the use of a vehicle falling within subsection (4) if-

(a) the worker had been employed by the client to provide the relevant services, and

(b) the vehicle had not been a company vehicle (within the meaning of Chapter 2 of Part 4).

(4) A vehicle falls within this subsection if-

(a) it is provided by the MSC for the worker, or

(b) where the MSC is a partnership and the worker is a member of the partnership, it is provided by the worker for the purposes of the business of the partnership.

(5) For the purposes of subsection (1) any necessary apportionment of payments or benefits that are referable partly to the provision of the relevant services and partly to other matters is to be made on a just and reasonable basis.

61F Sections 61D and 61E: application of rules relating to earnings from employment

(1) The following provisions apply for the purposes of sections 61D and 6 IE.

(2) A "payment or benefit" means anything that, if received by an employee for performing the duties of an employment, would be general earnings from the employment.

(3) The amount of a payment or benefit is taken to be-

(a) in the case of a payment or cash benefit, the amount received, and

(b) in the case of a non-cash benefit, the cash equivalent of the benefit.

(4) The cash equivalent of a non-cash benefit is taken to be-

(a) the amount that would be general earnings if the benefit were general earnings from an employment, or

(b) in the case of living accommodation, whichever is the greater of that amount and the cash equivalent determined in accordance with section 398(2).

(5) A payment or benefit is treated as received-

(a) in the case of a payment or cash benefit, when payment is made of or on account of the payment or benefit;

(b) in the case of a non-cash benefit, when it would have been treated as received for the purposes of Chapter 4 or 5 of this Part (see section 19 or 32) if-

(i) the worker had been an employee, and

(ii) the benefit had been provided by reason of the employment.

61G Application of Income Tax Acts in relation to deemed employment

(1) The Income Tax Acts (in particular, the PA YE provisions) apply in relation to the deemed employment payment as follows.

(2) They apply as if-

(a) the worker were employed by the MSC to provide the relevant services, and

(b) the deemed employment payment were a payment by the MSC of earnings from that employment; but this is subject to subsection (3).

(3) No deduction under Part 5 (deductions allowed from employment income) or section 232 (mileage allowance relief) may be made from the deemed employment payment.

(4) The worker is not chargeable to tax in respect of the deemed employment payment if, or to the extent that, by reason of any combination of the factors mentioned in subsection (5), the worker would not be chargeable to tax if-

(a) the worker were employed by the client to perform the relevant services, and

(b) the deemed employment payment were a payment by the client of earnings from that employment.

(5) The factors are-

(a) the worker being resident, ordinarily resident or domiciled outside the United Kingdom,

(b) the client being resident or ordinarily resident outside the United Kingdom, and

(c) the relevant services being provided outside the United Kingdom.

(6) Where the MSC is a partnership and the worker is a member of the partnership, the deemed employment payment is treated as received by the worker in the worker's personal capacity and not as income of the partnership.

(7) Where-

(a) the worker is resident in the United Kingdom, and

(b) the relevant services are provided in the United Kingdom, the MSC is treated as having a place of business in the United Kingdom, whether or not it in fact does so.

Supplementary provisions

61H Relief in case of distributions by managed service company

(1) A claim for relief may be made under this section where the MSC-

(a) is a body corporate,

(b) is treated as making a deemed employment payment in any tax year, and

(c) either in that tax year (whether before or after that payment is treated as made), or in a subsequent tax year, makes a distribution (a "relevant distribution").

(2) A claim for relief under this section must be made-

(a) by the MSC by notice to an officer of Revenue .and Customs, and

(b) within 5 years after 31st January following the tax year in which the distribution is made.

(3) If on a claim being made an officer of Revenue and Customs is satisfied that relief should be given in order to avoid a double charge to tax, the officer must direct the giving of such relief by way of amending any assessment, by discharge or repayment of tax, or otherwise, as appears to the officer appropriate.

(4) Relief under this section is given by setting the amount of the deemed employment payment against the relevant distribution so as to reduce the distribution.

(5) In the case of more than one relevant distribution, an officer of Revenue and Customs must exercise the power conferred by this section so as to secure that so far as practicable relief is given by setting the amount of a deemed employment payment-

(a) against relevant distributions of the same tax year before those of other years,

(b) against relevant distributions received by the worker before those received by another person, and

(c) against relevant distributions of earlier years before those of later years.

(6) Where the amount of a relevant distribution is reduced under this section, the amount of any associated tax credit is reduced accordingly.

61I Meaning of "associate"

(1) Subsections (2) to (4) apply for the purposes of this Chapter.

(2) "Associate", in relation to an individual, means-

(a) a member of the individual's family or household,

(b) a relative of the individual,

(c) a partner of the individual, or

(d) the trustee of any settlement in relation to which the individual, or a relative of the individual or member of the individual's family (living or dead), is or was a settlor.

(3) "Associate", in relation to a company, means a person connected with the company.

(4) "Associate", in relation to a partnership, means any associate of a member of the partnership.

(5) If-

(a) a managed service company ("the MSC") is a partnership, and

(b) a person is an associate of another person by virtue only of being a member of the partnership,

the person is to be treated, for the purposes of this Chapter as it applies in relation to the MSC, as if he were not an associate of that other person.

(6) In subsection (2), "relative" means ancestor, lineal descendant, brother or sister.

(7) For the purposes of subsection (2)-

(a) a man and woman living together as husband and wife are treated as if they were married to each other, and

(b) two persons of the same sex living together as if they were civil partners of each other are treated as if they were civil partners of each other.

61J Interpretation of Chapter

(1) In this Chapter-

"associate" has the meaning given by section 61I,

"business" means any trade, profession or vocation,

"the client" has the meaning given by section 61D(4),

"employer's national insurance contributions" means secondary Class 1 or Class 1A national insurance contributions,

"managed service company" has the meaning given by section 61B,

"national insurance contributions" means contributions under Part 1 of SSCBA 1992 or Part 1 of SSCB(NI)A 1992,

"PAYE provisions" means the provisions of Part 11 or PAYE regulations,

"the relevant services" has the meaning given by section 61D(4), and

"the worker" has the meaning given by section 61D(4).

(2) Nothing in section 995 of ITA 2007 (meaning of control) applies for the purposes of this Chapter."

(5) In section 218(1) (exclusion of lower-paid employments from parts of benefits code: calculation of earnings rate), in Step 1, at the end of paragraph (d) insert

"and

(e) in the case of an employment within section 61G(2) (deemed employment payment by managed service company), the total amount of deemed employment payments for the year."

(6) The amendments made by this Resolution come into force on 6th April 2007.

And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.

The House divided: Ayes 293, Noes 234.