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Lord Goldsmith: I shall deal first with the point made by the noble Lord, Lord Newby. He is right that the position in Customs and Excise is different and has been different. The acceptance and confirmation of the obligation of confidentiality has come by way of signing the terms and conditions of employment which have referred specifically to that obligation. I outlined that a little earlier.
As for the declaration to be required as a result of Clause 3, the clause makes it clear that the form will be a matter for the commissioners to correct. However, I can go this far: it is plain that it needs to be a formal acknowledgement, and something recognised as such. Therefore it seems likely that it will need to be something in a separate document, so as to make that clear. Probably the detail of the text will need to be developed in conjunction with the terms and conditions of employment, so it is probably right not to specify it in the Bill. However, once the terms are decided, I will be happy to ensure that a copy is placed in the Library.
The substantial point is that, for those subject to the obligation, it will be a formal declarationand I would go further and say that it will necessarily be a solemn declaration of the responsibility that they are undertaking. That is the point of making it a specific obligation under the Bill. I am sure that it will be given the necessary solemnity by those in management positions.
With regard to the question raised by the noble Lord, Lord Brooke of Alverthorpe, the new declaration, as the clause makes clear, applies only to officers, not to contractors or to those not appointed as commissioners or officers of Revenue and Customs. However, there will be other reasons why those people will be bound by the obligations of confidentiality so that statutory duties and criminal sanctions imposed under the Bill will in appropriate cases apply to them too. I am told that all with access to customer data will have confidentiality requirements imposed on them by their contracts.
It is right that those who are officers should be subject to this specific and formal requirement. Others who may have access to information will still be bound strongly by the obligation not to disclose itwhich will be enforceable by criminal sanctionbut not by having this form of declaration applied to them.
Baroness Noakes: I can say to the noble Lord, Lord Brooke, that we have later amendments designed to explore much the same concerns that he raised in relation to those involved in the Capgemini and Fujitsu projects in Customs and Excise.
The Bill is predicated on grandfathering all the existing employees, which will include the Inland Revenue ones who have made a declaration and the Customs and Excise ones who have signed a contract of employment. How is the Minister sure that there is equivalence between the two organisations in terms of the
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commitment to be made? We have new people making a declaration of confidentiality and Inland Revenue individuals who have made such a declaration, but existing Customs and Excise people who have signed a contract of employment. The grandfathering approach in Clause 3 seems valid only if everyone has signed a declaration already, not simply some people having signed a contract of employment. Perhaps we should revisit the issue.
Lord Goldsmith: I respectfully disagree. I do not think that anyone suggests that the present standards of honesty and integrity, including the maintenance of confidence within Customs and Excise, are any less than in the Inland Revenue. I am not aware of any suggestion that we do not trust the existing officers of Customs and Excise to obey those obligations of confidentiality. They accepted those obligations as a matter of law and contract in a somewhat different way from the formal declaration made by the Inland Revenue, but those same very high standards apply. That is why it seems entirely appropriate to accept the continuation of the declaration practice in relation to new employees, but to accept that those who have previously been within Customs and Excise already obey and understand those standards of confidentiality.
Lord Sheldon: I am very pleased to hear the kind tributes paid to my very good friend the noble Lord, Lord Callaghan. It is valuable that his views have influenced some of the statements made during the debate.
I am a bit uneasy about the terms to be decided. I hope that a solemn declaration will perhaps be witnessed as well. If my noble and learned friend could add "witnessed" to "solemn declaration", it might go some way to meet some of the strong feelings.
The matter is important. There have been obligations on all the Revenue departments for many centuries, but the danger comes when you make such changes. When you do so, some of the standards can be diluted, so it is important that we look at the terms and make sure that they are as strong as we can make them.
is in a standard legislative form. However, it begs the question of what period of time the Government would adjudge to be consistent with it. Did they envisage a fortnight, a month, six months or a year?
With no specific indication in the Bill, and given the importance of taxpayer confidentiality, there is something to be said for requiring any appointee to make the necessary declaration within an appropriate timescale. At the heart of my assumption is that an appointee who is hesitant about committing to the duty of confidentiality renders himself potentially unfit for appointment, the more so if a failure to make such a commitment can be spun out ad infinitum.
To address that, the amendmentI assure the noble and learned Lord the Attorney-General that it is probingadvances the proposition that the requisite declaration should be made within a month. After all, the essential point here is that, in order to sustain taxpayer trust, the regime of confidentiality needs to beand be seen to beadequately robust. I beg to move.
Lord Goldsmith: I shall resist the amendment, and shall explain why. I assure the noble Earl that the obligation of confidentiality starts immediately. The statutory obligation of confidentiality in Clause 18, and the criminal sanction which applies to its breach in Clause 19, will apply from the first moment. It is not necessary to worry about whether those obligations are there; they are.
he rightly says that it is used in statutes from time to timeis not an open-ended statement at all. It does not mean "whenever you feel like it", but at the earliest moment that is reasonably practicable. It does not mean the first feasible momentthat might be "as soon as is practicable"but as soon as is reasonably practicable to take account of the possibility that there may be reasons why the declaration cannot be signed at that moment.
The likelihood is that most staff will make the declaration within the first few days of their appointment. If not, it is extremely likely that the vast majority of them would do so very shortly thereafter. Save in unusual cases, it is unlikely that anyone would fail to do so within a month. It must be done within such time as is reasonably practicable, and there could be circumstances in which it is not reasonably practicable to do it within a month. As a simple example, someone might be appointed and then fall ill. They may be unable to come into work for a number of weeks. It would not be reasonably practicable during that period to make that person sign the declaration. If we had a strict cut-off time, however, that person would then be in breach of the statutory obligation to do it within one month.
I agree with the noble Earl that it is important to make sure that the matter be treated as an obligation to be dealt with at a very early stage. That is the effect of the obligation to do so as soon as reasonably
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practicable. I respectfully counsel against trying to put on a time limit that could be artificial and might, in exceptional cases, cause a problem. I invite him not to press the amendment.
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