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Baroness Noakes: At what point does this run? Is a person appointed when a letter is sent saying, "You will be employed", or is it from the date specified"You will be employed from 1 March 2005"? There could be a difference about whether it would be reasonable to put a time limit on it, whichever way you went. I mention that because, when a person commences employment, they will sign a contract of employment. There should be no reason why not. There should be every expectation that a statutory declaration is signed at that point.
There should not be any case in which someone who is appointed does not sign the declaration. Leaving a gap where there could be people who have not signed declarations is unhelpful. I am teasing out at what point this first arises and whether leaving this so open-ended as "reasonably practical" creates a practical gap that needs to be dealt with.
Lord Goldsmith: I am being torn in two different directions. My noble friend Lord Sheldon, for reasons that the Committee found utterly convincing on the last amendment, thought it necessary that the declaration should be witnessed and should have some solemn form attached to it. I am glad to say that he did not go quite as far as to say that we should follow the example of the experience of noble Lord, Lord Callaghan, and insist that each declaration should be witnessed by,
but, none the less, he has in mind some form of solemn event when the declaration is signed. Now that might be a different moment from the moment when a contract of employment is signedso I am being pulled in two different directions.
It is important to note that the expression "as soon as is reasonably practicable" is an expression that is well recognised in law, and courts regularly have to apply it. It is far from being an open-ended opportunity. Let us take, for example, employment legislation. A claim has to be brought within a certain period of time, unless it is not reasonably practicable to do so. Quite frequently, people find that they have gone beyond the statutory time limit. They say that there was this or that reason for doing so, and tribunals regularly say that "as soon as is reasonably practicable" is a tight obligation. Tribunals consider whether it was reasonably practicable to bring a claim,
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not whether a person has an excuse for not having done so. So I reject the suggestion that this is a loose expression. It is a pretty tight expression as it stands.
As to the moment from which it applies, I am told by the Box that the understanding is that it is from the moment that a person starts work. I do not know what the practice is in relation to contracts of employment. In the private sector, one may well be sent a contract of employment giving a starting date before starting work, and one is expected to sign the contract before that date. If that is so, then the moment for the solemn declaration would necessarily be later. I hope that answers the three points and is of some assistance to the noble Baroness.
The Earl of Northesk: I am grateful to the noble and learned Lord the Attorney-General for that response. I think that a slight issue remains, but this is a probing amendment. I always recognised that the noble and learned Lord would be able to satisfy me on the construction of "reasonably practicable". I am entirely happy with his response, although, as my noble friends have recognised, it leads into the next amendment. I beg leave to withdraw the amendment.
The noble Earl said: I repeat that it is entirely right and proper that any individual appointed as a commissioner or an officer of Revenue and Customs should be required to make a declaration committing himself to the obligations of Clause 18. That is all good and well, but I am uncertain whether there is any provision in the Bill to prevent such an appointee, if he so chooses, from effecting disclosures of information to which he may become privy as a result of this appointment, even though he may not have made the requisite declaration.
While acknowledging that the drafting of the amendment may well be imperfect, its purpose is straightforward. It bars appointees from involvement in the disclosure regime until such time as they have complied with the requirement of Clause 3. Where we are dealing with matters that engage Article 8 rights, it is appropriate to ensure, as far as possible, that any opportunity to circumvent those rights is properly and adequately constrained.
I note that the noble and learned Lord the Attorney-General may have responded this issue in the previous amendment by reference to contracts of employment. None the less, I would welcome the noble and learned Lord's clarification of the matter. I beg to move.
Baroness Noakes: I support my noble friend's amendment but perhaps I may ask the noble and learned Lord to address one question. Do any consequences flow from not signing a declaration of confidentiality, as required by Clause 3?
Lord Goldsmith: I shall deal, first, with the substantial point made by the noble Earl. I understand
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that the purpose behind his amendment is to enforce strongly the obligation of confidentiality. I share that purpose and desire with him, but I think that his amendment, if accepted, would have the opposite effect. I know that he does not intend that but perhaps I may explain why.
The consequence could be that someone who is fully aware of his obligation of confidentialitybecause it has been explained to him and because he knows full well that such obligations attach in the organisationbut who, for some reason, has not signed the declaration could with impunity, so it would appear, then disregard the obligation of confidentiality and provide confidential information without fear of sanction under the other provisions of the Act. I am sure that the noble Earl will agree that that is not what he intends to happen.
The important pointI am grateful for what the noble Earl said about the answer that I gave during debate on the previous amendmentis that we get on with the declaration, but that does not prevent the obligations of confidentiality being in place. Even if an employee has not signed the declaration, I have no doubt that before he starts work he will be reminded of the importance of confidentiality. No doubt that will be one of the early things to be impressed upon people when they enter an organisation.
Lord Goldsmith: We shall have to look into that but there is no doubt that the department will expect its new staff to sign. That is plainly what Parliament and this Committee want. Therefore it is likely that a failure to sign will be a breach of the contract. I do not know, in any sense, the full terms and conditions of employment and therefore do not know whether any adjustment needs to be made to ensure that that is the case. The noble Baroness has made a point which will no doubt need to be considered by those who are concerned with these matters, but I hope that the basic answer is of some assistance.
The Earl of Northesk: Once again, I am grateful to the Attorney-General for his response, although I should stress that during my introductory remarks I explained that I am horribly conscious that my drafting skills may not be as good as they should be in this case. Nevertheless, I am glad that I moved the amendment because we have obviously teased out an issue here which requires a little further attention. But, certainly for the moment, I am happy to beg leave to withdraw the amendment.
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