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"( ) issuing instructions under section 20(1)(a),"
The noble Lord said: In moving this amendment and all the amendments hereafter which appear in my name, I am really standing in the shoes of my noble friend Lord Northesk. He is the animating genius behind these amendments, and I am simply here to represent his case. I propose to spend a little time on Amendment No. 31 in the hope that my observations will inform later debates without the need for me to repeat them.
As Members of the Committee will be aware, the current Administration have not been backward in recent years in introducing legislative provision for the management of information and data held by Government. In the context of the Revenue authorities, there was, of course, Part 2 of the Criminal Justice and Police Bill of 2001. In the event, as a result of the general election that year—and, it has to be said, reservations about the proposals from these Benches and elsewhere—that provision fell and was not enacted.
Later in that same year, the Government returned to the matter with Parts 3 and 11 of the Anti-terrorism, Crime and Security Bill. As I am sure the Committee recalls, these provisions were duly enacted in an amended and—at the insistence of your Lordships' House—restricted form.
In short, the debate about how to legislate for the management of government-held information and data is by no means new. Moreover, there is a discernible sense in which the opinion of your Lordships' House, in so far as it has been expressed up to now, is at variance with—I put it no stronger than that—the aspirations of government policy in this area.
Insight about this can be gleaned from the thinking that underpins the report from the Performance and Innovation Unit entitled Privacy and data-sharing: The way forward for public services, published in April 2002. The eminently reasonable—perhaps even desirable—strategy promulgated in the report is that of managing information and data cross-departmentally as a means of delivering better and more focused public services. As the Prime Minister says in his foreword to the report,
"there is great potential to make better use of personal information to deliver benefits to individuals and to society, including through increased data-sharing".
In the context of this Bill, it is apparent that this approach provides a focus for how Ministers are anticipating that not only the reality of integration but
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also the specific provisions of Clauses 17 to 23 will operate. As the Paymaster General expressed it in another place on 8 December 2004 at column 1170:
"It is about delivering truly joined-up services to taxpayers, and about creating an organisation that can meet taxpayers' needs because it can look across their affairs and tailor its services to their particular circumstances",
a sentiment echoed in terms by the noble and learned Lord the Attorney-General.
But there is an inevitable tension here with the requirement to satisfy Article 8 rights to privacy. To be absolutely fair, the PIU report does not shirk this aspect of the matter. It accepts that:
"Public trust in the way that public sector organisations handle their personal data—and protect their privacy—is vital to the relationship between the citizen and public services".
Moreover, the report recognises that this is an immensely complex area. Indeed—dare I say?—legislation such as the Data Protection Act has the distinction of being among the most arcane and impenetrable currently to be found on the statute book. Nevertheless, while acknowledging both the legitimacy of concerns about privacy rights and the complexities of the situation, the thrust of its conclusions seems to attach more importance to developing ways of unlocking perceived barriers to the delivery of "joined-up" services rather than strict adherence to the existing corpus of data protection legislation. For example, it advances the proposition that data-sharing gateways could and should be established via secondary legislation. In a variety of ways, I can detect that the drafting of the Bill is imbued with elements of the same sort of logic.
I should stress that I recognise fully that better co-ordination of individuals' information and data could well produce benefits in terms of more responsive services. But, however desirable that may be, the way in which such goals are delivered should not give rise to any diminution or compromise of privacy rights. That being so, our plain preference is that processes for the sharing or pooling of information and data should be sanctioned only by means of specific statutory provision in primary legislation. This is, after all, the situation that has prevailed historically. Indeed, it is manifestly reflected in a number of the specific provisions we are currently considering, not least, for example, Schedule 2.
I would not wish to be misunderstood about this. As the Joint Committee on Human Rights has said:
I agree wholeheartedly. The Bill's sensitivity to issues of data privacy compares very favourably with the most indifferent drafting of other measures, such as the database provisions of the Children Bill last year or, indeed, the identity cards Bill. I have no doubt that this is a reflection of the degree of seriousness that Treasury Ministers attach to taxpayer confidentiality as a means of sustaining the integrity of the tax system. It is that very fact, together with our conviction that,
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of necessity, provision in the primary statute must be clear and unequivocal, which has prompted the amendments that have been tabled.
I turn to the specific amendment under consideration. Clause 14 permits the delegation of functions of the commissioners other than the matters reserved by subsection (2). I do not dispute the administrative benefits of that. However, in the light of the crucial importance of taxpayer confidentiality—and we are all agreed on that—it is in my submission inappropriate that the function of issuing instructions as to the circumstances under which information can be disclosed, as provided for in Clause 20(1), should be delegated. Such matters are too important to be sacrificed on the altar of administrative convenience. They should be dealt with at commissioner level to ensure that they, and their implications for the integrity of the tax system, are engaged at the appropriate level.
Here the Committee will be aware that a recurrent theme in the scrutiny of legislative provision for the management of information and data is the level at which authorisation for any proposed operation is set. For us it stretches credibility that such a sensitive issue could be delegated to an unspecified "any other person", as provided for at Clause 14(1)(c). Indeed, I would be grateful if the noble and learned Lord the Attorney-General could give the Committee some insight as to what category of person it is intended that this would include.
I hope that I am not being too obtuse and facetious here—certainly it is not my intention—but, as I read the clause, I see nothing that would prevent the commissioners delegating any of their functions, let alone those relating to information disclosure, to, for example, an office cleaner. I accept, of course, that in the event that would not happen; but that should not disguise the fact that potentially the legislation permits it. Nor, of course, do I intend any disrespect to office cleaners, who do a wonderful job for which we are all very grateful. But as I have already suggested, what matters here is that the regime is not only robust in its own right but is also perceived to be robust, if only because, as the PIU report accurately recognises, these are matters that engage "public trust".
Against this background the purpose of the amendment is straightforward. It seeks to add the function of issuance of information disclosure instructions, as provided for at Clause 20(1)(a), to the list of reserved matters in subsection (2) of the clause that we are discussing. In so doing, it ensures that this function cannot be delegated. I very much hope that the noble and learned Lord the Attorney-General will feel able to respond with at least a degree of sympathy to my concern as expressed here. I beg to move.
Lord Newby: I have considerable sympathy both with the general point being made by the noble Lord and his specific point in this amendment. However, I have a slight difficulty about understanding what one means by delegation in certain circumstances. Under
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the provisions of Clause 14(2), none of the currently specified acts can be delegated to a single commissioner. These include,
I may be mistaken but I find it very difficult to believe that the board of Customs and Excise sitting as a board looks at applications for a warrant to search premises in an individual case. I suspect that what happens is that an investigation officer who wishes to apply for a warrant makes a submission to a commissioner and that that commissioner decides the case.
My understanding is that the boards of the Inland Revenue and Customs and Excise do not really operate like a corporate board in terms of having a whole raft of information and decision-making coming before them, but that they delegate—very often to a single commissioner—responsibility for an area of policy. Unless I am mistaken, they do not meet frequently to discuss corporately many matters.
While I would have complete sympathy with the amendment if it referred to not only the board of the new department but also to a single commissioner, I have a query that these issues will not go to the board anyway. These things do not go to the board. In a way, it is a question relating to the whole of subsection (2) because I do not believe that these issues would go to the board as opposed to a single commissioner, and yet, under subsection (1), a single commissioner cannot have delegated powers in those areas. Can the Minister clarify that situation?
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