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Baroness Noakes: Perhaps I may offer what little insight I have from having been on the management board of the Inland Revenue. I fully accept that the board of the Inland Revenue is not a day-to-day operating unit, but it was my understanding at the time that those functions were exercised by the board of the Inland Revenue—that is, those commissioners of the Inland Revenue—which is one of the reasons why there was a clear separation from the management board.

Lord Newby: My point was that, in practice, that meant very often that there was just a single commissioner and that there was not a corporate decision.

Lord Goldsmith: Let me deal straight away with the point raised by the noble Lord, Lord Newby. It is interesting that the reason the noble Baroness answered as she did and the noble Lord spoke as he did may be because their respective core experience comes from the two different constituent bodies. I am told that the Inland Revenue board do look at every search warrant but the Customs and Excise board do not.

That difference in current law and practice is carried forward in the Bill because it is only Inland Revenue warrants to which this non-delegable reserved function applies under Clause 14(2)(b). The position in relation to Customs and Excise is different and the current position is carried forward. This may be
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looked at in the powers review, about which we have spoken already, because of course in this sort of area we are keeping things as they are for the time being.

As regards the issues of principle and the substantive amendment, we have a lot of sympathy with the fundamental point made by the noble Lord, Lord Kingsland—it would have been made by the noble Earl, Lord Northesk, if he had been in his place—that, where possible, information gateways should be in primary legislation. This clause—and I will come to the safeguards in the clause—really only permits in a narrow range of public interest cases that information will pass under the Clause 20 regulations. I would expect that where it appears over a period of time that a regular flow of information is going in a particular way to the same body, one would look for an opportunity to make that a statutory gateway in some appropriate primary legislation.

Against that background, Clause 20 provides a power to make regulations to permit the disclosure where it is in the public interest to do so, and where that public interest is identified in regulations to be made in accordance with the procedures under the clause.

Why do we need that power? Let me be clear that HM Revenue and Customs will always use statutory gateways for disclosure where it is possible. But there will sometimes be situations where there is a public interest in disclosing, but where existing gateways do not allow for the type of disclosure that the situation requires. In the past, when faced with those types of situations, Customs has acted in accordance with government guidance and exercised its implied powers to disclose in the public interest. It seems that, in line with a commitment to taxpayer confidentiality, it is appropriate to increase the transparency of what is an existing process by constraining the degree to which commissioners can exercise that discretion, which is exercised currently. That is what Clause 20 and the regulations allowed by it will do.

I want to place on the record that the power to regulate for that type of disclosure will be used only sparingly to create new regulations. Members of the Committee may have had the opportunity to look at the draft regulations, which have been placed in the Library, so they are available. They indicate all the areas that would be covered if the regulations were passed in this form. I shall not read them all out now for the record but I shall take one or two. They are disclosures,

It is narrow in three respects: it must be necessary to honour international and other agreements; it must be in relation to the movement of persons, goods and transport; and it must be necessary for the purposes of the prevention or detection of crime, fraud or evasion.
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The next sub-paragraph refers to disclosures,

the noble Baroness will recognise the significance and importance of that,

Again, it is a specific public interest disclosure. I respectfully invite Members of the Committee to examine the draft regulations to see how narrow they are.

Lord Campbell of Alloway: I have not seen the draft regulations. If that is the situation, why cannot the substance of that limitation be put on the face of the Bill? Why are we fiddling around with secondary legislation? This is a fundamental right.

Baroness Noakes: I have not seen the draft regulations under Clause 20, although I was aware that they existed. Although it is often helpful to see how government intend to use their powers initially, that should not cloud one's view about whether the powers that create them are desirable. Often, seeing the draft regulations merely confirms that certain things should be in the Bill and nothing else. So, often, just seeing the draft regulations does not take one much further as regards agreeing that the powers would be used satisfactorily.

Lord Goldsmith: I beg to differ with the noble Baroness. A question is raised as to how the clause will operate. The draft regulations demonstrate, as I understand it, the things currently envisaged for the regulation. They cover prevention or detection of crime, fraud or evasion in relation to movement of persons et cetera under international agreements, and a body exercising public functions in relation to the protection of public health and safety. I suggest that, when one looks at the draft regulations, one will find that they are all proper, laudable, public interest reasons why disclosure should be permissible. They are all proper reasons for allowing a disclosure under Article 8 of the European Convention, to which I shall return.

The real point being made against the clause is a broader one so I shall make it now. It is being said that there should be included only those things that you can think of today. They must be done by primary legislation and there shall be no ability to add to or to amend in the light of changed circumstances other than by primary legislation.

That is an onerous position to put us all in, because circumstances may well arise in future where it is apparent to all responsible and right-thinking people that there are circumstances in which disclosure should be made. For example—and this may be a bad example because it does not come from the box—following the events of 11 September, the United Nations at that stage put in a number of obligations to
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deal with what was perceived to be an important and serious threat. Part of that was the disclosure of information; we may need the ability to be able to respond to that under properly protected secondary legislation, subject to affirmative resolution, which this matter will be, and constrained in a number of ways, which I will deal with, rather than having to wait for primary legislation.

Lord Campbell of Alloway: I am surprised that the noble and learned Lord said that it was an "onerous" obligation. Of course it is. It is an onerous obligation on the Government. If you do not have it in primary legislation, it is onerous on the general public. It is the wrong approach. If you are going to derogate from a position and involve confidential information, you should put the scope of the limitations on the face of the Bill. I cannot see any objection to that.

Lord Goldsmith: "Onerous" may have been the wrong word for me to use. "Inflexible" or "rigid" may have been closer to the mark. I am unrepentant in saying that I disagree with noble Lords who take a different view and say that you can only have a public interest gateway, however legitimate, important and essential it may be, if you think of the need for it at the time of your original primary legislation. If not, you have to wait for an opportunity to take further legislation through the full processes of Parliament.

Perhaps I may examine the safeguards that are provided under Clause 20 and then I shall return to the amendment, because, in many ways, the noble Lord invited us to go beyond the specific amendment. The clause allows regulation to be made only when the Treasury is satisfied that the need for HMRC to make that type of disclosure is in the public interest. Secondly, in addition to specifying a purpose for the regulation, the disclosures authorised may be limited or restricted, such as limiting the disclosure to a type of information or to a person or a class of person. Thirdly, regulations may prohibit the further disclosure of information and if they do so, shall provide for this to be subject to the same criminal offence that is provided for in Clause 19. Fourthly, and importantly, all regulations are subject to affirmative resolution.

As I said at the outset, we are seeking to increase, at least as far as Customs is concerned, the existing transparency. Customs rightly considers that it has an implied power to make certain disclosures which increases the transparency and subjects it to a strong parliamentary scrutiny procedure.

Regarding the amendment, two things are needed for a disclosure. First, it must be in the public interest, in accordance with the regulations. Secondly, it must be on commissioners' instructions. It is that element which the noble Lord would seek to make a non-delegable function. It would mean that all instructions for public interest disclosures—notwithstanding that they fall within the existing regulations—would have to be considered specifically by the commissioners themselves. I suggest that it would be unrealistic to suggest that the commissioners would have to deal with each and every instruction.
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Sometimes disclosures need to be made at very short notice—there might be an urgent danger to a member of the public. It is difficult for the commissioners to predict all these circumstances. So the official would have to revert to the commissioners, which would create a delay with potentially serious consequences.

I would, therefore, strongly say that there is a case for delegating the ability to issue instructions. However, I entirely accept that it is appropriate that there are safeguards in those delegations and their extent. First, all disclosures remain subject to the requirements of the Data Protection Act and the Human Rights Act. Secondly, a number of administrative safeguards will be in place to ensure compliance with the requirements of those two Acts.

The noble Lord, Lord Kingsland, asked me to say to what sort of person authority will be delegated. Although he recognised that it was wholly unrealistic, he gave the example of delegation to the office cleaner. Plainly not; the delegation that is in mind will extend only to more senior staff. The authority will not be delegated to junior staff. That will ensure that there is an appropriate level of accountability and authority for any instructions made. The noble Baroness indicates that it does not say that on the face of the Bill. However, I am standing at the Dispatch Box on behalf of the Government saying that that is the way in which this will operate.

In addition, management checks will be built in to ensure that all public interest disclosures are not only authorised but are fully compliant with the provisions of the Human Rights Act and the Data Protection Act. So all staff who make disclosures in the public interest will be required to maintain a full audit trail of to whom the disclosure is made, the information in the disclosure and the purpose of disclosure. Training and guidance will be given to all staff to ensure that public interest disclosures are made lawfully.

I should hope that my statements on behalf of the Government on how this will operate will reassure Members of the Committee that this will not be used to delegate to office staff. In particular, having drawn attention to the narrowness of the proposed public interest gateways as shown in the draft regulations, I believe that that in itself already constrains considerably the sort of areas with which we are concerned. If the amendment were accepted, ultimately, it would unrealistically require the commissioners to consider each and every instruction for disclosure, and that would not make sense in the context of operating this business.

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