Tom
Brake: I fully support the amendments, and their intention
to introduce tighter controls on the use and disclosure of information.
Miss Begg, you will not have heard this morning’s deliberations
on databases and so on, and I will not bore other hon. Members who have
heard them at length today and on other occasions, but clearly there is
an issue about the creation of very large, centralised databases and
the control, security and disclosure of data. The amendments would
ensure
that specific consent is sought, or that the data relate exclusively to
an individual and would thus tighten up the
procedures. I
shall digress briefly. This morning, many Members may have heard a
story about mobile phones. At some point in the past, perhaps in
response to a market research questionnaire, people may have failed to
tick a box to confirm that they were not giving consent to having their
mobile phone number held in a central directory. People who missed that
box then found that their mobile phone number was available through
that central directory. There are some similarities in flagging up the
fact that consent may have been sought in relation to a specific
exchange of data, rather than generalised consent that was given in the
past—perhaps in circumstances slightly different from those that
prevail now—and which has been forgotten about. Unless the
Minister can give some strong reassurances that the amendments would
serve no purpose, we may well be supporting the hon. Member for Ashford
in his venture if he pushes his point
harder.
Mr.
Woolas: We seem to have come to a controversial part of
the Bill, or at least to a controversial argument. The problem is that
the argument is not about the clause. The clause is not about
databases. It is about what permission HMRC and the Revenue and Customs
prosecution officers need so that they can give customs and immigration
officials information and what those officials need to give information
to other agencies, such as courts.
Let us
remember that the purpose of consolidating the existing powers in the
new agency is to fight crime. By extrapolation, a police officer may
have access to the fingerprint of a criminal. If my customs and
immigration officials have apprehended someone they suspect, for
customs and immigration reasons, to be a criminal, they would be
allowed to share information with the police. The provision is about
fighting crime, not about a Big Brother database. Indeed, we have added
measures to existing powers and to the Bill to protect against such
things as the hon. Gentleman is reasonably worried about.
I accept the
point that, with technology, there could be creeping,
unintended—if you take a different view,
intended—interference in people’s privacy. I respect that
point of view, but let me outline what the provision is trying to do
and is doing, and not what it is being accused of doing. The danger is
that we tie the hands of our officials so much that they do not have
access to the intelligence information that they need to do their jobs.
Our constituents would not forgive us if we were to get that balance
wrong. Sections
40, 41 and 42 of the UK Borders Act 2007 set out the confidentiality
framework applied to the use and disclosure of information that is
provided by HM Revenue and Customs and the Revenue and Customs
Prosecutions Office. That legislation has been debated and passed by
the House. Clause 20, the amendments to which we are debating,
introduces two new sections for insertion after section 41 of the 2007
Act. The clause enables Revenue and Customs and the Revenue and Customs
Prosecutions Office to disclose customs information, including a
relevant document or article, to a designated customs official; to the
Secretary of State by whom general customs functions are exercisable,
or, in practice, their officers; or to the director of border revenue
or—in practice—a person acting on their behalf for the
purposes of the customs functions exercisable by them. The clause
permits disclosure of customs information to the Secretary of State for
his newly acquired customs functions and enables staff who currently
work for HM Revenue and Customs, but will soon transfer to the UK
Border Agency, to continue to receive relevant information for the
discharge of their customs
functions. The
clause also sets out the specific circumstances in which those who
receive customs information supplied under the proposed new section 41A
of the UK Borders Act 2007 may themselves disclose it to a third party,
such as a court official. Wrongful disclosure of such information to a
third party will be subject to the criminal sanction prescribed in
section 42 of the 2007 Act. That critical assurance, which was sought
in the debate on the 2007 Act, transfers to the Bill as
well. We
believe that the agency must have the ability to use information that
it receives from HMRC and the prosecutions office in order to do its
job properly. There will be times when the agency needs to disclose
information for the purposes of civil proceedings to ensure that it can
fully carry out its customs functions at the border. That could, for
example, include disclosure to the VAT and duties tribunal in the
exercise of its customs revenue functions in relation to the export of
goods from, or the import of goods to, the United Kingdom. That means
that if the officers are aware of or believe there to be a
transgression of VAT duty payment, they should be entitled to tell the
tribunal. I do not see that as an infringement, but as a necessary
civil law enforcement
function. Those
key functions of the agency need to be protected. While such
disclosures could arguably be made on occasions under proposed new
section 41B(2)(a) of the UK Borders Act 2007, that would not always be
the case. It is important to ensure that there is a clear and
unambiguous power to make disclosures for civil proceedings, including
those before the tribunal. Amendment 10 would cast doubt on the ability
of UKBA to match such disclosures and would therefore have a negative
impact on the ability of UKBA to do its
job. The
position under amendment 11 would be similar. Revenue and Customs and
UKBA will work closely together in the discharge of their respective
functions. In particular, the agency will work with the Revenue and
Customs prosecution officers in taking forward relevant criminal
proceedings. Information sharing will be integral to that process, just
as it between the police and the Crown Prosecution Service.
The ability
to share information under the 2007 Act, in accordance with general
consents given by HMRC or RCPO, will not lead to unrestricted data
sharing but, rather, will enable a class of relevant information to be
shared where that is appropriate. It would be impractical and hugely
resource-intensive if, as amendment 11 requires, HMRC had to provide
specific consent each and every time they supplied information to a
person under section 41A of the 2007 Act. It would be
paperwork. It would be form-filling. It would be tying up in
unnecessary work the hands of the officials we are asking to protect
our revenues and our borders. Amendment 11 is neither realistic nor
desirable.
Lastly,
it seems that amendment 12 is intended to clarify the fact that
information may only be disclosed under proposed new section 41B(2)(f)
of the 2007 Act when the person wishing to disclose it has the consent
of the person to whom it exclusively relates. I want to assure the
Committee that this is precisely the effect of the current drafting and
reflects the existing practice of HMRC, RCPO, the Home Office and the
agency, so the amendment is unnecessary. Although it is arguable that
disclosure of information for civil proceedings would sometimes be
possible under the new sections of the 2007 Act, that would not always
be the case. Further, the inclusion of an express power to disclose for
the purposes of criminal proceedings could cast doubt on the ability to
disclose for the purposes of civil proceedings in the absence of an
equivalent express power to do that.
The power to
disclose HMRC information for the purposes of civil proceedings,
whether in the UK or not, mirrors provisions in section 18 of the
Commissioners for Revenue and Customs Act 2005, which enables HMRC to
do their job. In short, the amendments arise from concerns about the
integrity of databases and the purposes to which they are put. The
clause is about the very pragmatic instances when our officials share
information in order to apprehend crime or potential crime, whether
civil in the case of duties, or crime in some of the customs functions.
It is also about the ability of the agency’s officers to share
that information with the justice system. In that respect, I believe
that the amendments are a red herring, important principles though they
raise. 4.30
pm
Damian
Green: The Minister slightly gave it away in his last
remarks when he talked about apprehending crime or potential crime.
That is another of the catch-all phrases that Ministers have taken to
using to justify ever-increasing intrusion. The potential to apprehend
potential crime and to give the state the power to do that requires
very severe restrictions, checks and transparency of the type that is
not available. Every transaction is a potential crime according to that
mindset. Ministers always come down on the side of, “If it might
prevent a single crime in the future, then let’s do it.
Let’s take these powers. Let’s exchange this information.
Let’s give more people the power to access this
information.” In a sense, I suspect that there is no point our
debating the matter. We just disagree. I think it is a dangerous way
for the Government to
operate.
Mr.
Woolas: The hon. Gentleman is painting a picture. We are
talking not about customs and immigration officials being judge and
jury, but about law enforcement. Just as a police officer needs access
to intelligence about fingerprinting, say, to investigate a crime, if a
customs official is faced with a bloke with a bag full of cocaine it
might be useful to know from Revenue and Customs whether he owes money
on a big tax bill. That is not being judge and jury; it is law
enforcement
investigation.
Damian
Green: But if he is in front of the officer with a bag
full of cocaine, he will be arrested anyway, so that is not a
particularly powerful
example. The
Minister’s basic point is that this is just about law
enforcement, not databases. However, in practice, these days, any
collection of personal information and data is about databases, because
all the information collected
under the clause will end up on a database. That is what the databases
are for and that is why the data are collected. I am afraid that that
is relevant. All the points that were made about the security of those
databases and the ability of people to cross-reference databases are
relevant to a clause such as this one in a Bill of the type that we are
discussing. The
Minister said that he was worried about me—although he did not
use the word “paranoid”, I think he thought
that—being concerned about things being slipped through. I am
fascinated by proposed new section 41B(1) and (2)(b), under
which, “A
person to whom information is supplied under section 41A may not
disclose that information...But subsection (1) does not apply to a
disclosure...which is made for the purposes of civil proceedings
(whether or not within the United
Kingdom)”. That
is a powerful exemption that applies to any civil proceedings anywhere
in the world, and that means that the protection that is written in
does not apply. The Minister has yet to convince me that, without
protection, that sort of exemption to the protection does not drive a
coach and horses through his arguments about the provision being
proportionate or, in some ways, necessary for crime fighting. By
definition, civil proceedings do not involve criminal offences;
otherwise, they would be criminal proceedings, which are covered in
another part of the same clause. That is why we tabled
amendment
10. It
is significant that much of the Minister’s response was about
how the provision makes life easier for the institutions concerned to
do what they do. I am sure that that is true. But overriding that
should be the convenience of the citizens of this country, the vast
majority of whom are not criminally inclined, are not going to smuggle
stuff across the border and will not break immigration rules. The
Minister and I disagree on a point of principle relating to where the
appropriate balance is struck between personal freedom and personal
privacy in this country and the ability of the organs of the state,
including the law enforcement agencies, to do their job with what they
would regard as the minimum
fuss. I
am sure the Minister will be pleased to hear that I accept his point
about amendment 12. If he assures me that what is in the Bill is not
altered and strengthened in any way by the addition of
“exclusively”, I am happy to accept that argument.
Nevertheless, I do not accept his arguments on amendments 10 and 11,
which I propose to put to a
vote. Paul
Rowen (Rochdale) (LD): I have been listening carefully to
the debate and I understand what the Minister is trying to achieve.
However, as the hon. Member for Ashford said, the clause grants the
ability to disclose information in respect of any civil proceedings.
Were the Minister to define that, perhaps in a separate statutory
instrument, and to say under what circumstances and for what purposes
such information would be made available, he could reassure Committee
members. That might be a compromise way forward that might reassure
those of us with severe concerns about the overarching nature of the
disclosure that the clause seeks to grant customs
officials.
Mr.
Woolas: I think I understand the hon. Gentleman’s
point. There is not an overarching power; the Bill transfers what is
currently the provision. A real case that came across my desk a few
weeks ago provides a typical example of where information may be passed
over. Cash had been found in someone’s suitcase at Luton airport
and information was disclosed to a customs official that the person was
wanted for alleged criminal activity and alleged tax avoidance. One
must strike a balance. I cannot comment on the individual case
too much.
If a
legitimate activity is being undertaken—such as travel with an
amount of cash—but there is reasonable suspicion that a
person’s intent is either criminal, or civil if it relates to
VAT and duties, it seems perfectly reasonable that the official should
have the power to share information. That is not the same as the
picture painted by the hon. Member for Ashford. He has had the good
grace to say that it is a question of balance and I accept that. The
next time someone from a tabloid newspaper phones up and says,
“Why did the officials at UKBA let that person go?” I
hope he will have the honesty to say that it was because he disagreed
with the balance. That is the reality of the work that my
officials do.
I do not
accept the argument that there is a new power, new database or a new
infringement or interference in anybody’s privacy. These are
transfers of powers. I throw his argument back at him. If we were
talking about a border police force, would he not want that police
force to have these sorts of powers? Of course he would; otherwise, it
would not be a police force. The House is right to scrutinise and
investigate but we should get the balance right and give our officials
the powers that they have already, and that they need under the new
structures, to do their job to protect
us. Question
put, That the amendment be made:—
The
Committee divided: Ayes 7, Noes
9.
Division
No.
1] Question
accordingly negatived.
Amendment
proposed: 11, in clause 20, page 14, line 25, leave out
‘consent (which may be general or specific)’ and insert
‘specific consent’.—(Damian
Green.) Question
put, That the amendment be made:—
The
Committee divided: Ayes 7, Noes
9.
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