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Earl Russell: My Lords, I want to probe a little further about the reference to,
- "prescribed descriptions of such persons".
Baroness Hollis of Heigham: My Lords, I am pretty confident of the answer but I shall get professional advice. I agree with the noble Earl that that is a major consideration.
When I have sought advice on the matter, the categories or descriptions of persons that are involved have never at any stage involved a particular race or
ethnic minority group. They have been concerned with situations in which, for example, one person in a couple is subject to immigration controls and the other is not. That is the category in question. It ensures that people in like circumstances are treated in like ways. That is why the word "category" is necessary, rather than making a rule or discretion for Joe Bloggs.We may also need to modify other rules, such as those concerned with the engagement of the claim and in qualifying remunerative work and a person's responsibility for a child. At present, different systems take different approaches towards, say, the immigration status of children. But, again, we need to bring that within the broader framework of the Bill. We are considering which of the models—for example, the income support and JSA model or the WFTC/DPTC model—is more appropriate. We are certainly seeking advice and would welcome the noble Earl's views on the matter.
In terms of the prescribed descriptions of persons, the noble Earl was concerned that, in relation to immigration control, we might need to draw distinctions according to nationality in contravention of the European Convention on Human Rights. I assure him that such distinctions are not a matter for these regulations. However, as the noble Earl will know, a person who is subject to immigration control can fall into various categories, irrespective of his nationality. The categories cover those who seek asylum, those who are in the country without permission, those who are in the country temporarily, and those who either have or do not have permission to take up paid employment, and so on.
As things stand—this is the substantive point that I want to make—all such groups are excluded from entitlement to WFTC and DPTC benefits and from anything that might count as recourse to public funds. We want to follow that approach, but we believe that it makes sense to keep all aspects of the tax credit rules under review. Without such a clause, we would not be able to make the kind of category exemption to which one person is subject but the other is not, and to which we might want to return.
I hope that I have addressed the noble Earl's concern. As I said, with regard to his point that we shall be running contrary to the European Convention on Human Rights, I have given an undertaking and a written declaration that that is not the case. Therefore, I hope that that meets the noble Earl's concern. However, I shall be very happy to follow that up with further legal advice because I believe that he has raised an issue on which he is entitled to have more precise assurances than I have been able to give today. However, we are on the same side in relation to this matter, and I hope that the noble Earl will be able to withdraw the amendment.
Earl Russell: My Lords, I am grateful to the Minister for those concluding words. I understand what she says about couples. Of course, that will be a fairly common situation since people who are in this country for a number of years may well tend to marry. I still believe that these vires are too widely drafted.
However, I do not propose to take the matter any further tonight, and I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 53 [General functions of Board]:
7 p.m.
Lord Higgins moved Amendment No. 23:
- Page 30, line 32, leave out subsection (2).
The noble Lord said: My Lords, it is possible that the noble Baroness will have a slight sense of deja vu so far as concerns this amendment. Therefore, perhaps I may assure her that, if that is so, this is my swan song, if I may mix my metaphors.
At previous stages of the Bill, we have discussed at great length the curious way in which the draftsman insists on calling things which are pay-outs or benefits part of revenue, which of course is concerned with receipts. We have been over that point at great length on many occasions. But at this late stage in the Bill—at Clause 53—we suddenly find that for the purposes of the Inland Revenue Regulation Act 1890, which, again, we discussed at great length previously, the definition of "Inland Revenue" here includes both child benefit and the guardian's allowance.
My objection to this clause is very simple. The clause says that things which are pluses are minuses; it says that black is white; and it is an abuse of the English language to say that something relates to the Inland Revenue if one is paying out a sum rather than otherwise. I hope that my noble and learned friend Lord Howe of Aberavon, in considering the whole subject of tax legislation, might seek to clarify this point. None the less, since the provision covers two separate and new items—child benefit and the guardian's allowance—I hope that, even at this late stage, I can move the noble Baroness to see the overwhelming logic of the amendment. I beg to move.
Baroness Hollis of Heigham: My Lords, I am sorry but I am absolutely flinty on this matter. We have discussed the 1866 Act in great detail on previous occasions. We have discussed the 1890 Act, under which the Inland Revenue has its powers. I recall vividly that the 1866 Act—
Baroness Hollis of Heigham: My Lords, I have the words in front of me, as does the noble Lord. He got there ahead of me. When we looked at the 1866 Act, the words in front of us made it clear that after deductions of X, Y and Z, the gross revenues of the board may, and so on. Therefore, it was clear that when the board was set up originally by, I believe, William Gladstone, or at least given its powers in that form under that Act, gross revenues were what were left over after deductions had taken place. Therefore, the meanings that this Bill adopts are entirely consistent with those laid down by William Ewart Gladstone.
As I said, we discussed this matter at great length on a previous occasion. As I explained then, the amplification of the term "inland revenue" in the Inland Revenue Regulation Act is necessary to ensure that the statutory framework under which the board exercises its statutory responsibilities applies to the full range of its functions. That is why Clause 53(2) provides that the term "inland revenue", with lower case initials—I believe that I should belong to the compositors' union—is to be taken to include tax credits, child benefit and guardian's allowance. In other words, "inland revenue", with lower case as opposed to capitalised initials, means the comings-in and the goings-out of moneys.
Following the transfer effected by Part 2 of the Bill, child benefit and guardian's allowance will be administered by the Inland Revenue, with capital letters. Therefore, the term "inland revenue"—that is, moneys—which, in Section 39 of the 1890 Act is a reference to the scope of the Board of Inland Revenue's responsibilities, needs to be amplified so that it covers those benefits.
When we discussed the matter earlier, I explained that the term "inland revenue" had nothing to do with what counts as tax. The clause simply makes the point that no one is suggesting that child benefit and guardian's allowance will be anything other than social security benefits, even after responsibility for administering them has been transferred to the Inland Revenue. None the less, that power needs to be embodied by effect of the Bill. Therefore, I hope that the noble Lord is happy to agree that this is his swan song on the issue.
Lord Higgins: My Lords, happy? I am bitterly disappointed by that reply. The child benefit and the guardian's allowance are not deductions, even in the context of the earlier debate. But I believe that we are anxious to make progress. I shall see what other avenues are available to me, and perhaps the reforming group of my noble and learned friend Lord Howe of Aberavon will finally manage to put the matter right after a century and a half or so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 59 [Use and disclosure of information]:
Lord Saatchi moved Amendment No. 24:
- Leave out Clause 59.
The noble Lord said: My Lords, in moving Amendment No. 24, I shall speak also to Amendment No. 29. There are two issues relating to Schedule 5. My noble friend and I thought that the easiest way to raise both issues was to move that the whole schedule be removed from the Bill.
The first reason for that suggestion is that Schedule 5 is intended to provide statutory authority to disclose information, which would be in breach of the Data Protection Act 1998. We believe that it may also touch on the Human Rights Act 1998. The exchange of information, for example, under paragraph 9 relating
to the passing of information about tax credit claimants in relation to health, may be in breach of Article 8(1) of the convention. That states that:
- "Everyone has the right of respect for private and family life".
- "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
- "the economic well-being of the country".
- "necessary in a democratic society".
I am told by those who know more about such matters that the case law clearly establishes that the interference must also be proportionate—that is reasonable.
To us that does not appear to be clear cut in relation to the passing of information among government agencies and departments that are described in Schedule 5. Given the events this week in relation to privacy in which your Lordships' House was closely involved, perhaps the noble Baroness can give further justification on that point.
I turn to the second reason why there is a case for leaving this clause out of the Bill, which is that the House of Commons has never seen it. Only the unelected Chamber has had a chance to look at it. Therefore, that touches on a fundamental point which is the relationship between the two Houses of Parliament. During the passage of the House of Lords Bill the then Attorney-General, now the Leader of the House, said that the result of that Bill would be a modern House of Lords,
- "better equipped to do its proper job of holding the Executive to account".
- "the primacy of the House of Commons".
So it was that on 7th November in the Statement of the Leader of the House on the White Paper to explain why it was impossible to have more than a 20 per cent elected element in this House, he said,
- "Reform of your Lordships' House must satisfy one key condition".
- "It must not alter the respective roles and authority of the two Chambers".
- "The House of Lords should remain subject to the pre-eminence of the House of Commons in discharging its functions".—[Official Report, 7/11/01; col. 206.]
Noble Lords may remember that the Leader of the House gave a crisp reply to my noble friend Lord Kingsland at the end of a debate on the Parliament Act. He asked my noble friend whether he was questioning the supremacy of the House of Commons. The Leader of the House will have thought carefully and with great precision about the choice of the word "supremacy". I looked it up and its meaning is one that is perfectly benign and that all noble Lords could accept as a description of the House of Commons in relation to this House. There are meanings in the Thesaurus such as,
- "above, greater, top spot, first place, senior, top dog, top banana, outrank, No. 1".
We are a humble House and we know our place. The House of Commons sends us legislation which we revise and send back for its consideration. It has the last word. But I do not know of any speech by the Leader of the House in which he said that your Lordships' House would receive legislation directly from Government departments; in other words, directly from the executive, bypassing the House of Commons altogether. I do not recall the Leader of the House saying anything about the primacy of the Department for Work and Pensions, or about the pre-eminence of the Treasury. He did not say that because that would be a new constitutional departure whose only merit would be its extreme originality.
If the Department for Work and Pensions is to deal directly with your Lordships' House, why do we bother with the House of Commons at all? We could scrap it and let your Lordships' House deal directly with government departments. Is that what we want? We must remember that there is a great deal of concern about the lack of scrutiny of finance Bills. The Institute of Chartered Accountants said of the Finance Act,
- "Much of this legislation was barely debated in its progress through Parliament. Many of the provisions became law without either a thorough review or the time for second thoughts or worthwhile amendments".
- "The tax system has spun out of democratic control".
Therefore, what should we say about a schedule such as this one which has not been seen at all by another place. In my opinion, we should refuse to consider this schedule; we should send it back so that the elected House can perform the function that we all agree is for it alone. It is not the case, as the Minister said in Committee, that in putting forward this suggestion we are challenging the supremacy of the House of Commons. In fact, we are doing the exact opposite. On 18th December the Leader of the House said,
- "The House of Commons is to be supreme ... it must have its own way".—[Official Report, 18/12/01; col. 130.]
We accept, as the noble and learned Lord, Lord Simon of Glaisdale, says,
- "that the vouchsafing of fiscal authority to the other place is a necessary conclusion".—[Official Report, 24/1/01; col. 266.]
7.15 p.m.
Earl Russell: My Lords, I have two points to make. First, the alleged primacy of the House of Commons has existed in our history for two periods, which between them amount to 26 years. The first was from 1649 to 1653 and the second from 1846 to 1868. Otherwise, what happened is that the executive learned to use patronage to control the House of Commons and still does. Secondly, if another place fails to do its duty, that is no excuse for us not to do ours.
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