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Clause 8: Power of Treasury to modify Director’s functions
47. Clause 8 enables the functions relating to customs revenue matters that may be exercised by the Director to be updated where necessary to reflect legislative and other changes. This clause provides that the Treasury may, by order, amend the matters that are included within the definition of a customs revenue matter, make provision for clause 7 to apply in relation to a function conferred on the Commissioners by an enactment passed or made after the end of the session in which this Bill is passed and modify any enactment (including one passed or made after the passing of this Bill) in consequence of any provision made under clause 8 (a), (b) or (c).
Clause 9: Delegation of Director’s functions
48. Clause 9(1) provides that the Director may make arrangements to delegate a function. Subsection (2) states that the delegation of a function does not prevent the Director from exercising the function and does not prevent the exercise of the function by a customs revenue official designated under clause 11. Subsection (3) requires that, where the Director delegates a function, the Director must monitor the exercise of the function by the person to whom it is delegated and that the person concerned must comply with the directions of the Director in exercising that function.
Clause 10: Compliance with directions etc.
49. Clause 10 applies to the Director in the exercise of the Director’s customs revenue functions and to a person to whom such functions have been delegated under clause 9. Subsections (2) and (3) require that such persons must comply, in the exercise of customs revenue functions, with any directions of a general nature given by the Treasury and must apply any concession published by the Commissioners and any interpretation of the law issued by the Commissioners. Subsection (4) imposes an obligation on a person to whom clause 10 applies to comply with any other guidance issued by the Commissioners and to take account of any other material published by them. In summary, the clause seeks to ensure consistent application of tax policy by HMRC and the Director.
Customs revenue officials
Clause 11: Designation of customs revenue officials
50. Clause 11(1) provides that the Director may designate an immigration official or other official of the Secretary of State by whom general customs functions are exercisable as a customs revenue official for the purposes of this Part of the Bill. Subsection (2) provides that a customs revenue official has, in relation to a customs revenue matter, the same functions as an officer of Revenue and Customs would have and may exercise the functions that are conferred on the Director by clause 7.
51. Subsection (3) provides that a function that may be exercised in relation to both a customs revenue matter and another matter is exercisable by a customs revenue official only in relation to the customs revenue matter.
52. Subsection (4) provides that, where appropriate, a reference to an officer of Revenue and Customs, or to HMRC, in an enactment, instrument or document to which clause 11 applies is to be construed as including a reference to a customs revenue official. Subsection (5) provides that a reference in clause 11 to functions of an officer of Revenue and Customs are to functions conferred by an enactment to which clause 11 applies. Subsection (6) specifies that clause 11 applies to an enactment passed or made, or an instrument or document issued, before this Bill is passed and, subject to express provision to the contrary, to an enactment passed or made, or an instrument or document issued, after this Bill is passed.
53. Subsection (7) provides that clause 11 applies only in relation to certain sections of the CRCA 2005, namely section 2(4) (continuation of anything begun by one officer by another), section 6 (officers’ initial functions), section 25(1), (1A) and (5) (evidence), section 25A(1) (certificates of debt) and section 26 (rewards) and section 31 (obstruction), section 32 (assault) and section 33 (power of arrest) excluding the power to arrest a person for the offence of impersonation under section 30. Subsection (8) provides that the extent to which a customs revenue official may exercise functions under clause 11 is subject to any limitation specified in the official’s designation under clause 12 (supplementary provisions about designation) and to any designation of the same official under clause 3 (designation of general customs officials).
Clause 12: Designation: supplementary
54. Clause 12 provides that a designation under clause 11 is subject to such limitations as may be specified in the designation and subsection (2) provides that a limitation may, in particular, relate to the functions which are exercisable by virtue of the designation or the purposes for which those functions are exercisable.
55. Subsection (3) states that a designation may be permanent or made for a specified period and may, in either case, be withdrawn or varied. Subsection (4) requires that the power to designate, withdraw or vary a designation must be exercised by the Director giving notice to the official in question. Subsection (5) states that the Director may designate an official only if the Director is satisfied that the official is capable of effectively carrying out the functions that are exercisable by virtue of the designation and has received adequate training in respect of the exercise of those functions. In addition to these requirements, the Director must also be satisfied that the official is otherwise a suitable person to exercise those functions.
Clause 13: Directions by the Director
56. Clause 13 requires a customs revenue official to comply with the directions of the Director in the exercise of functions in relation to a customs revenue matter.
Use and disclosure of information
Clause 14: Use and disclosure of customs information
57. Clause 14 sets out the broad circumstances under which customs information may be used or disclosed and by whom, and defines customs information. It provides that this provision does not supersede any other legislation prohibiting the use or disclosure of information.
58. Subsection (1) of clause 14 states the general principle that:
- where a person to whom this clause relates acquires customs information in connection with one function, they may use that information for the purpose of any of their functions; and
- that person may also disclose customs information to any other person to whom the clause relates for the purpose of that other person’s functions.
59. Subsection (2) sets out to whom this clause applies: a designated customs official, an immigration officer, the Secretary of State by whom general customs functions are exercisable, any other Minister of the Crown in that Secretary of State’s department, the Director and a person acting on behalf of any of the above.
60. Subsection (3) makes the general principle in subsection (1) subject to certain exceptions. These exceptions are any restriction or prohibition which limits the use of information, as imposed by:
- this Part of the Bill, such as clause 15, which prohibits certain disclosures of personal customs information;
- any international or other agreement to which the UK or Her Majesty’s Government is party. An example of an international agreement would be the Naples II convention on mutual assistance and cooperation between customs administrations. An example of an “other” agreement would be the UK and Isle of Man Revenue Sharing Agreement of 15 October 1979, as amended, containing a limitation on use of information obtained from the Isle of Man Customs and Excise Service. As the Isle of Man is not a state in international law, it does not have the capacity to conclude international agreements.
61. Subsection (7)(a) states that, for the purposes of the definitions in subsection (6), it is immaterial whether the information was acquired or is capable of being acquired by the person holding the information or another person. Subsection (7)(b) states it is immaterial whether the information was also acquired or is also capable of being acquired in the exercise of any other function. Therefore information which has been obtained relying on both a customs function and any other function of the person acquiring the information (or is capable of being acquired under that other function) will still fall within the definition of customs information.
Clause 15: Prohibition on disclosure of personal customs information
62. Clause 15 imposes a statutory duty of confidentiality on the Secretary of State by whom general customs functions are exercisable, a Minister of the Crown, and officials, in that Secretary of State’s department, immigration officers, the Director and any person acting on behalf of any of those persons. A similar obligation is imposed in clause 17 on any person to whom personal customs information has been disclosed under either clause 16 or clause 17.
63. Subsection (1) lays down the principle that “personal customs information” may not be disclosed by a relevant official, the Secretary of State by whom general customs functions are exercisable, or by another Minister of the Crown in that Secretary of State’s department, to anyone who is not a relevant official or a Minister of the Crown. “Relevant official” is defined in subsection (3) to mean a designated customs official, an immigration officer, the Director and any other person acting on behalf of the Secretary of State by whom general customs functions are exercisable or the Director, a designated customs official or an immigration officer.
64. Subsection (2) preserves the general principle that Ministers should remain at arm’s length from taxpayer information. It creates a further statutory duty of confidentiality to protect personal customs revenue information from being disclosed to a Minister of the Crown by a person who is or was a relevant official.
65. Subsection (4) defines what is meant in this Part of the Bill by “personal customs information” and “personal customs revenue information”. These terms include information relating to persons who are deceased, as well as those who are living, and to corporate bodies which no longer exist, as well as those which are still active.
66. Subsection (5) provides that a person does not breach the subsection (1) duty of confidentiality by disclosing information which that person knows to have been acquired otherwise than as the result of the exercise of a customs function. It also provides that a person does not breach the subsection (2) duty of confidentiality by disclosing information which that person knows to have been acquired otherwise than as the result of the exercise of a customs revenue function. These provisions ensure that the duties of confidentiality created by this Bill only restrict the disclosure of that information which the Bill is intended to regulate (namely information which it is known was acquired, or might have been so acquired, as the result of the exercise of a customs function, or customs revenue functions, as appropriate).
67. Subsection (6) provides that the statutory duty of confidentiality contained in subsections (1) and (2) are subject to the clause 16 exceptions and to any other enactment (other than an enactment in this Part of the Bill) permitting disclosure where such a disclosure does not contravene any restriction imposed by the Commissioners. An example of another enactment permitting disclosure of information that would otherwise be regarded as confidential under this provision would be the Criminal Procedure and Investigations Act 1996. That Act governs disclosure of information in the context of criminal proceedings.
68. Subsection (7) provides that this section does not apply to information supplied by or on behalf of HMRC or the Revenue and Customs Prosecutions Office (“RCPO”). This is without prejudice to any other restriction on the disclosure of such information. The confidentiality of information disclosed to a relevant official by HMRC and RCPO will continue to be governed by section 41(as well as the new sections 41A and 41B inserted by clause 20 of this Bill) of the UKBA 2007. The reference to any other restrictions on the disclosure of such information is in reference to the restrictions in section 41B in particular.
Clause 16: Exceptions to section 15 prohibition
69. Clause 16 sets out the limited number of circumstances where the disclosure of personal customs information is permitted.
70. Subsection (1) allows the disclosure of personal customs information where provided for in subsections (3) to (8) and when, in the case of customs revenue information, such disclosure does not contravene any restriction imposed by the Commissioners.
71. Subsection (2) ensures that the Commissioners’ restrictions do not apply to information which is known to have been acquired otherwise than in the exercise of customs revenue functions.
72. Subsection (3) allows a disclosure to be made for the purposes of a customs function, a function relating to immigration, asylum or nationality, a function relating to national security, or a function relating to the prevention or detection of crime.
73. Subsection (4) allows a disclosure to be made to a person exercising public functions, whether in the UK or abroad, in order to assist them in carrying out those functions. Accordingly, disclosures to public bodies such as the Independent Police Complaints Commission (“IPCC”), as well as to HMRC and RCPO, would be permitted under this clause, as would a disclosure by a customs official to the local licensing authority of information relating to a publican convicted of evading excise duty.
74. Subsection (5) allows a disclosure to be made for the purposes of civil proceedings, a criminal investigation or criminal proceedings (whether or not within the UK). Disclosures relating to civil proceedings must be for proceedings relating to a function set out in subsection (3). This would cover, for example, information required in relation to proceedings for recovery of a debt owed to another customs authority. Disclosures for the purposes of criminal investigations or proceedings are not limited and may relate, for example, to an investigation of a robbery. Subsection (5) also allows a disclosure in pursuance of an order of a court such as disclosure made in accordance with a witness summons.
75. Subsection (6) enables a disclosure to be made with the consent of each person to whom the information relates. This would cover for example an individual case where a person raised their circumstances with their Member of Parliament, asked them to take the case up with the relevant Government Minister, and authorised a relevant official to disclose what they knew of the case to the Minister for that purpose.
76. Subsection (7) allows a disclosure to be made in order to comply with an obligation of the UK, or Her Majesty’s Government, under an international or other agreement. The agreements in question will typically be Memoranda of Understanding with public authorities abroad for the purposes of securing the due administration of their respective customs laws.
77. Subsection (8) allows for disclosure to persons specified under regulations made jointly by the Secretary of State and the Treasury or disclosures of a kind specified in such regulations.
Clause 17: Prohibition on further disclosure
78. Clause 17 sets out the circumstances where the further onward disclosure of personal customs information may be allowed. It applies to persons who will have received information from persons specified in clause 15, in accordance with clause 16, or indeed from other persons (who have received customs information from those persons) under clause 17 itself.
79. Subsection (1) states if a disclosure takes place in reliance on clause 16 or this clause, the person to whom that disclosure was made is prohibited from further disclosing the information without the consent of a relevant official (as defined in clause 15(3)).
80. Subsection (2) states that a person does not breach subsection (1) if the disclosure has been made in accordance with subsections (3) to (8) of clause 16, and provided that, in the case of the disclosure of customs revenue information, such disclosure does not contravene any restriction imposed by the Commissioners.
81. Subsection (3) provides that the Commissioners’ restrictions do not apply if the person making the onward disclosure knows that the information was acquired other than through the exercise of a customs revenue function.
82. Subsection (4) states that clause 17 is subject to any other enactment permitting disclosure. This, for example, would include section 36 of the IANA 2006, as amended by clause 21, which requires the Secretary of State, HMRC and the police to share certain information relating to the border with each other.
83. Subsection (5) states that the term “enactment” referred to in subsection (4) does not relate to an Act of the Scottish Parliament or a Measure or Act of the National Assembly for Wales or Northern Ireland legislation.
Clause 18: Offence of wrongful disclosure
84. Clause 18 makes unauthorised disclosure of personal customs information a criminal offence carrying a maximum penalty of two years’ imprisonment and an unlimited fine.
85. Subsection (1) makes it an offence for any person to contravene the non-disclosure provisions of clauses 15(1) or (2) or 17(1) by disclosing personal customs information.
86. Subsection (2) provides certain defences for a person charged with the offence of wrongful disclosure. In particular, a person will not be guilty of the offence if they prove that they reasonably believed that the disclosure was lawful. Similarly, a person would not be guilty if they proved that they reasonably believed that the information had already and lawfully been made available to the public; it would be no defence as regards subsequent disclosure to say that the information had been disclosed previously, unless the person making the disclosure could also establish reasonable belief that that earlier disclosure had been lawful.
87. Subsection (3) provides that prosecutions for the offence may be instituted in England and Wales with the consent of the Director of Public Prosecutions or the Director of Revenue and Customs Prosecutions, and in Northern Ireland only with the consent of the Director of Public Prosecutions for Northern Ireland. No comparable provision is needed in Scotland, because the Procurator Fiscal and the Crown Office automatically have exclusive cognisance of summary and indictable offences in Scotland, under the law relating to Scotland, without the need for specific enabling provision.
88. Subsection (4) provides that the prosecution of the subsection (1) offence is without prejudice to other remedies for unlawful disclosure contrary to the clause 15 duty of confidentiality, for example the seeking of an injunction to restrain an unlawful disclosure.
89. Subsection (5) lays down the penalties for those found guilty of the offence under subsection (1). The offence is triable either way, that is either:
- summarily, where the maximum penalty will be 12 months’ imprisonment (in England and Wales) or six months’ imprisonment (in Northern Ireland), or a fine not exceeding the statutory maximum (currently £5,000), or both; or
- on indictment, when the maximum penalty will be two years’ imprisonment, or an unlimited fine, or both.
Provision is also made for penalties in Scotland and Northern Ireland.
90. Subsection (6) provides that in relation to an offence under clause 18 committed before the commencement of section 282 of the Criminal Justice Act 2003, the reference in subsection (5)(b)(i) to 12 months has effect as if it were a reference to six months.
Clause 19: Application of statutory provisions
91. Clause 19 puts beyond doubt that nothing in clauses 14 to 17 authorises the making of a disclosure which contravenes the provisions of the Data Protection Act 1998 or Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 19 also provides that information which is subject to the duty of confidentiality is exempt information for the purposes of the Freedom of Information Act 2000. It makes clear that exceptions to the duty are disregarded for the purposes of this analysis as to do otherwise would be at odds with an FOI regime that does not require a requester to justify a request. There is a consequential amendment to section 23 of the CRCA 2005 in similar terms.
Clause 20: Supply of Revenue and Customs information
92. Clause 20 inserts two new sections after section 41 of the UKBA 2007, which enable HMRC and RCPO to disclose customs information to designated customs officials, the Secretary of State by whom general customs functions are exercisable, the Director and any other person acting on behalf of these persons. It also sets out the circumstances where the further onward disclosure of personal customs information provided through those channels may be allowed.
Clause 21: Duty to share information
93. Clause 21 amends section 36 of the IANA 2006, so that the duty to share information under that section applies to designated customs officials, immigration officers, the Secretary of State in so far as the Secretary of State has general customs functions or functions relating to immigration, asylum or nationality, the Director of Border Revenue and any person exercising functions of the Director, as well as to the police and HMRC. The information to be shared by these persons is information on travel and freight to the extent that it is likely to be useful for immigration or police purposes or for Revenue and Customs purposes.
Clause 22: Application of the PACE orders
94. Clause 22 applies provisions of PACE and PACE NI to criminal investigations conducted by designated customs officials in relation to a general customs or customs revenue matter, and to persons detained by such designated customs officials (subsections (1) and (2)).
95. It does so by applying the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (S.I. 2007/3175) and the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464) (“the Revenue and Customs PACE orders”), which in turn apply PACE and PACE NI to those officers of HM Revenue and Customs who carry out equivalent functions.
96. Subsection (3) sets out how such terms and references in the Revenue and Customs PACE orders should be read in respect of the UK Border Agency. For example, references to an officer of Her Majesty’s Revenue and Customs are to be read as references to designated customs officials, references to the Commissioners are to be read as references to the Secretary of State or Director of Border Revenue, as appropriate, and references to an office of Revenue and Customs are to be read as references to an office of the UK Border Agency.
97. Subsection (4) defines “an office of the UK Border Agency” as premises wholly or partly occupied by designated customs officials and clarifies that a person is in UK Border Agency detention if that person has been taken to such an office after being arrested for an offence, or is arrested at such an office. This definition of UK Border Agency detention does not cover persons detained under paragraph 16 of Schedule 2 to the IA 1971 or paragraph 2 of Schedule 3 to the Immigration Act 1971 or sections 2 or 36 of the UKBA 2007.
98. There are a few provisions of PACE and PACE (NI) which apply to those officers of HM Revenue and Customs carrying out customs functions at the border currently which it is not proposed to apply to the designated customs officials of the UK Border Agency. Those functions are set out in subsection (5) and relate to tax investigations, which will not be carried out by the UK Border Agency, and to the authorisation process which the Commissioners are required to undertake before HMRC officers may exercise powers under PACE. Consideration will be given during the designation process, under clause 3, by the Secretary of State, and under clause 7, by the Director of Border Revenue, to which powers it is appropriate for designated customs officials to exercise, including those under PACE. Accordingly, it is unnecessary to apply a further authorisation process.
99. Subsections (6) and (7) provides for the transfer of persons between UK Border Agency detention, HM Revenue and Customs detention and police detention.
100. Subsection (8) provides that any expression used in clause 22 which is defined in a Revenue and Customs PACE order shall have the same meaning as in that order.
101. Subsection (9) provides that clause 22 does not affect the generality of clauses 1(4), 3(5), 7(5) and 11(4) of this Bill which provide for references in enactments, instruments or documents mentioned in those clauses to the Commissioners, or the officers of HMRC, or to HMRC itself, to be construed as including references to the Secretary of State, the Director of Border Revenue, designated general customs officials or designated customs revenue officials, as appropriate.
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