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The Deputy Chairman of Committees (Lord Ampthill): I should tell the Committee that the sound system is not working properly, though I am happy to report that it has been getting through to Hansard upstairs. So nothing has been lost in that respect. As you will observe, however, the lights are not coming on. If the noble Lord, Lord Kingsland, could wait to let us know what he has decided to do with this
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amendment, it will give them a chance to make some adjustments. I am assured that it will take less than half a minute.
Lord Kingsland: I shall remain in a sedentary position.
The Deputy Chairman of Committees: I shall indicate when we are ready to resume.
[The Sitting was suspended from 4.48 to 4.50 p.m.]
The Deputy Chairman of Committees: The sound system is back in business.
Lord Kingsland: I am most grateful. I am afraid that my rather prolix introduction to this amendment proved, so far as the noble and learned Lord the Attorney-General was concerned, rather like a mayfly to a spring trout. He, quite understandably, could not resist the temptation of dealing with a number of issues that fell strictly outside the amendment. I do not in any way admonish him for that; if anyone was at fault, it was myself.
Before I deal with the specific issue to which the amendment gives rise, I refer to one or two matters that the noble and learned Lord the Attorney-General addressed. We are extremely grateful to the noble and learned Lord for lodging in the Library a copy of the draft regulations. No doubt the contents of those regulations raise perfectly proper considerations in the context of the definition of public interest. However, that does not constrain in any way this or any future government issuing further regulations which might not fall into such an admirable category. I would therefore like the noble and learned Lord the Attorney-General to pay particular attention to the intervention of my noble friend Lord Campbell of Alloway about the importance of having a definition of public interest on the face of the Bill.
I entirely accept the response of the noble and learned Lord the Attorney-General to my noble friend Lord Campbell of Alloway when the noble and learned Lord said, "Of course, if I do put something on the face of the Bill it cannot possibly be comprehensive because I cannot anticipate events in the future of which no reasonable person could possibly have had foreknowledge". I am sure my noble friend and I both accept that that is so.
Nevertheless, just because it is impossible to think of everything that one might want to put on the face of the Bill, it does not seem to me, with great respect to the noble and learned Lord, that we should not put something on the face of the Bill which reflects the underlying principles of Article 8 of the convention. After all, the convention is something that the noble and learned Lord and his government wished on the nation. It seems, in my respectful submission, only proper that its provisions should now be respected. It is my understanding of the law which underpins Article 8 that something more specific than a general expression of public interest is required. However, we shall return to that matter in later amendments and I do not intend to dilate on that any further.
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As far as the specific amendment is concerned, I was extremely grateful to the noble Lord, Lord Newby, for his suggestion that the expression "commissioner" might be substituted for "commissioners". That seems to me to be a wholly appropriate and extremely helpful gloss on our own amendment. The noble and learned Lord the Attorney-General expressed the view that it would be most onerous for the commissioners to have to consider every case of public interest disclosure. I respectfully submit that that would not be so. Public interest disclosure as a basis for disclosure would, in my submission, be relatively rare. If one adds the suggestion of the noble Lord, Lord Newby, that it is a matter which could be dealt with perhaps by a duty commissioner on the telephone for a certain period of time, 24 hours a day, that would be a perfectly acceptable administrative way of dealing with the matter—just as one has a High Court judge in the High Court on 24-hour duty to deal with applications for interim injunctions. I see no reason why the commissioners should not adopt the same practice.
But supposing the noble and learned Lord the Attorney-General is right in saying that one would need a wider reservoir of officials in the new organisation to deal with sudden and unexpected situations where a public interest disclosure was desirable. I would suggest that he adopts the practice adopted in the Financial Services Act 1986, where specific categories of officials are designated to deal with particular matters connected with emergencies.
I see no reason why, if the noble and learned Lord feels that he would need to go beyond the category of commissioner, he could not say that officials at a certain grade-level could exercise that delegated power. Simply to have an open-ended definition, as the noble and learned Lord suggests, seems to provide no protection for the citizen.
I will withdraw the amendment because, in any case, I cannot put it to the vote. But it is a matter to which, I know, the Opposition, at any rate, will return on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Use of information]:
Lord Campbell of Alloway moved Amendment No. 32:
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 35 to 37. I am grateful to my noble friend Lord Kingsland for moving Amendment No. 31 because it leads us at long last to the main point of substance on the structure of the Bill, on which there is fundamental disagreement.
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Amendment No. 32 is concerned with the use and exchange of confidential information obtained from one department for one purpose and used for another purpose by either department. My noble friend Lord Kingsland has just said that the business of sharing information should be subject to specific statutory provision in the Bill. I totally agree. I shall not take time dealing with the delegation point on Clause 14(1)(c), to which I also happen to agree, as it is slightly wide of the mark on this amendment.
The use and sharing of information was considered in the report of the Joint Committee on Human Rights, at paragraphs 1.14 to 1.18, to which I should like to refer later if there is time. They are referred to in context—my noble friend Lord Kingsland rightly referred to that—with Article 8 of the European Convention on Human Rights, which has been spoken to, up to a point, on day one of the Committee, as reported at col. 266 of Hansard.
Amendment No. 33 to Clause 18(2)(b) engages Clause 20 as one of the exceptions to afford disclosure in the public interest in the same context as it was considered in the report of the Joint Committee on Human Rights: Article 8 of the European Convention on Human Rights. That is dealt with in paragraphs 1.23 and 1.24 of the report, to which I shall refer later.
Amendment No. 36 relates to Clause 18(2)(c), which affords disclosure for the purpose of civil proceedings. Amendment No. 37, which relates to paragraph (d), which affords disclosure for the purpose of criminal investigations and proceedings, was also considered in paragraph 1.25 of the Joint Committee's report. All were referred to in a highly critical manner in the context of want of compatibility. I shall come to that if there is time.
The purpose of all the amendments to which I am speaking is to bring the exercise of these powers, which is what they are, under some form of control "in accordance with law"—an express provision of Article 8(2)—and to afford the safeguards as provided by Article 8(2) and as proposed in paragraphs 1.26 to 1.33 of the report. These safeguards relate to the case that I am putting forward and I shall read them quickly. Under the heading "Stronger safeguards", the report states:
"Although we broadly welcome the protection for taxpayer confidentiality in the Bill, we consider that there is some scope for introducing stronger safeguards to ensure that the power to disclose confidential information . . . is not abused.
"The Government rely on the fact that when making disclosures of confidential information, HMRC will be under a duty to comply with both the Human Rights Act 1998 and the Data Protection Act 1998".
Pausing there for a moment, the noble and learned Lord referred to the safeguards provided by the Human Rights Act in the context of the delegation to which my noble friend referred.
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Returning to the report, the committee stated—or "we" stated, as I was a member of the committee—that,
"While this is legally correct in practical terms it does not provide an answer to the lack of effective safeguards for the reasons pointed out by the Privy Counsellor Review of the Anti-terrorism, Crime and Security Act 2001 ('the Newton Report') in the context of that Act's provision for public bodies"—
"to disclose information to assist criminal investigations or proceedings, or to the intelligence and security agencies".
We then quote and adopt what was said in the Newton report:
"The protection offered by the Human Rights Act 1998 and the Data Protection Act 1998 seems to us to be illusory since the burden will lie on the individual to complain about the disclosure of their confidential information in circumstances where, almost by definition, he or she will be unlikely to know that disclosure has occurred".
In other words, the view is taken that it is a myth, a kind of mirage. It may suit government to look into it, but it affords no safeguard at all.
That is the fact of the matter that the noble and learned Lord the Attorney-General will not accept. It is one of the fundamental issues of contention that will arise and remain throughout the proceedings of the Bill and will have to be resolved in a Division.
Paragraph 1.28 of the report states:
"The applicability of both the HRA 1998 and the DPA 1998 is therefore no substitute for the strong safeguards in the statutory scheme to ensure that power to disclose confidential information about an individual . . . will generally be unaware, is only exercised in circumstances where it is proportionate to do so".
The noble and learned Lord, my noble friend and I were talking about safeguards.
"Three important safeguards which are desirable in relation to regimes for the disclosure of confidential information are pre-disclosure assessment, prior authorisation and external oversight".
I have interpreted prior authorisation in the form in which I have put all of these amendments; that is, that they are,
I have not put the High Court. I have only sought judicial control in some form.
The same difficulty is arising on the new terrorism Bill; that is, whether, before you do something that invades someone's old or traditional rights, you should have prior authorisation via a judicial form, not after. So that is an important matter.
"The Bill at present contains no requirement that a pre-disclosure assessment be made of the proportionality of disclosing information on a particular individual in the context of the particular purpose which is sought to be served by disclosure. In our view the Bill should contain an express requirement that, before any decision to disclose confidential information is made, a structured assessment of the proportionality of such disclosure . . . should always be made".
I will refer to only one further extract at this stage. Of course, prior authorisation lies at the root of my case. Paragraph 132 states:
"The Newton Report points out that prior authorisation safeguards have traditionally been considered particularly important when an individual is unlikely to know that such powers are being exercised against him. It recommended that the rigorousness of such a prior authorisation safeguard should be a function of two factors: the seriousness of the crime being investigated and prosecuted"—
my noble friend Lady Noakes took that point at Second Reading—
which the report then deals with. It states that prior judicial review might be necessary in other cases, and so forth.
"The Newton Report recommended that Parliament should be given the opportunity to decide what level of authorisation should be required"—
In our view, the same applies in relation to the present Bill. As your Lordships will know, the Newton report related to the Serious Organised Crime and Police Bill.
Speaking to the amendments, perhaps I may deal with two questions that arose. I made a very short reply to the noble and learned Lord's speech on our first day in Committee, at cols. GC 267–8 of the Official Report. He said then, as he said today, that the Human Rights Act and the Data Protection Act are strong and sufficient safeguards. I have given the Committee a reference sufficient to show that, in the opinion of the Joint Committee on Human Rights, they are not.
Secondly, the noble and learned Lord said that both departments—and this was the issue that arose on day one and carried over from Second Reading—retain powers to settle arrears of tax and to offer civil settlement; and because that was so, there was no cause for concern that the powers would cease to exist. I was arguing this amendment and raising this point but that was not my case at all. I never said that the powers did not exist. My concern—and the concern of four noble Lords who have vast experience of the Treasury, including a triumvirate from the Benches opposite, two of whom are present at the moment—was about the total diversity of cultures as between the two departments and their working practices. We have heard today the noble and learned Lord explain a particular diversity. The Revenue department should remain independent of Customs and Excise in the interests of the protection of the individual taxpayer. That is how it was put on Second Reading by the noble Lord, Lord Thomas of Gresford.
Note in this context must be taken of coercive investigatory powers under the Serious Organised Crime and Police Bill, on which the Joint Committee on Human Rights also reported as engaging Article
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8(2), a matter raised by my noble friend Lady Noakes at Second Reading. Note also has to be taken of the resort by the Customs and Excise to what is called a writ of assistance. Nobody else has any recourse to this; you get it from the Queen's Remembrancer. He is usually the Senior Master over the road in the law courts. It is a general search warrant entirely free from any form of judicial control, which authorises forcible entry and is justified on reasonable suspicion even if no goods are found. Now there is a rather different type of approach to enforcement from what is usually done in the Revenue, and there is a genuine concern here.
I shall end by referring, on Amendment No. 32, to paragraph 1.14. It states:
"The Bill provides that information acquired by the Revenue and Customs in connection with one of their functions may be used by them in connection with any other function. The purpose of this provision is to enable the internal sharing of information . . . so that information inherited from any of the predecessor departments can be used to support any function of the new department, not just the function in relation to which the information was originally acquired".
But it is the conclusion that,
"The internal use by HMRC of information about taxpayers is an interference with Article 8 rights, but one which is capable of being justified".
The conclusion is that certain suitable safeguards are wholly requisite, about which it has written to the Government.
As regards Amendment No. 35, the reference in the report is to paragraphs 1.23 and 1.24, again on the public interest. It states:
"Our principal concern is with the uncertain scope of the 'public interest disclosure' exception provided by clauses 17(2)(b) . . . Those clauses provide that the statutory duty of confidentiality does not apply to a disclosure made for a purpose of a kind . . . The kinds of purposes for which public interest disclosure is permitted are not therefore defined on the face of the Bill, but left to be specified in regulations".
My noble friend Lord Kingsland has taken that point. I need say no more on paragraph 1.23.
"In our view this gives rise to a risk of non-compliance with the requirement that interferences with Article 8 rights must be in accordance with the law. The definitions which have been left to regulations should be on the face of the Bill".
Amendments Nos. 36 and 37 deal with using the material for civil or criminal investigations and so forth. I shall not read paragraph 1.25, which is the relevant passage. I just take the point that there is a real difficulty about whether there should be disclosure to foreign agencies. There is no limitation or restriction whatever, which is a matter that should be in the Bill. I apologise for taking rather a long time.
The structure of the Bill is manifestly defective. Appropriate powers against misuse of powers are wholly requisite. This is a matter to be revisited at a later stage. I beg to move.
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