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Lord Goldsmith: I start by clarifying something that I said on the last amendment. I apologise. I was asked about the extension of the scope of disclosure and I referred specifically to RCPO. I should have added the prosecuting authorities in Scotland and Northern Ireland and the external scrutiny bodies which will have oversight of HMRC. I wanted to say that now so that the noble Lord will be able to take it into account in his considerations.

Lord Kingsland: I am most grateful to the noble and learned Lord for that addition. It is so characteristic of him to want to be absolutely accurate. I am most grateful.

Lord Goldsmith: I am obliged. In large measure I have dealt already with Clause 20 because the effect of the amendment would be to take it out altogether.

Let me reiterate a couple of points. Customs have in the past, acting in accordance with government guidance, exercised implied powers to disclose in the public interest. The Inland Revenue has also disclosed in the public interest in the past—for example, when asked by police for assistance in murder investigations. Since 2001 it has used the provisions of the Anti-terrorism, Crime and Security Act to make these kinds of disclosures.

The point I wish to underline is that the Bill will increase the commitment to the principle of taxpayer confidentiality by making transparent what disclosures may be permissible in a way in which the implied powers
 
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and the exercise of the implied powers do not. This will constrain the degree to which the commissioners can exercise their discretion.

The noble Lord asked in what kind of cases the power to make regulations will be used. The Joint Committee on Human Rights also asked that question. Let me make it clear that I shall provide copies of this correspondence to all noble Lords; nothing that I said before was intended to suggest that I would not do so. I shall try to make available all information that may be helpful to noble Lords in the course of our consideration of the Bill. The answer given to the Joint Committee was to draw attention to the draft regulations which were sent to the committee, a copy of which has been placed in the Library. They identify, in answer to the noble Lord's question, the kind of areas in which regulations will be used.

Let me emphasise one very important point: all the purposes identified under the draft regulations are acceptable under the European Convention on Human Rights. They are specifically limited to those purposes and any other purpose suggested would have to be acceptable under the convention. Why? Because these regulations will be subject to the affirmative resolution procedure. That means, under the procedures the Government have accepted, that a Minister will be required to make a declaration of compatibility with the European Convention on Human Rights when such regulations are laid.

Obviously it also means that those regulations will be subject to parliamentary scrutiny. Indeed, if I may take the noble Baroness back to what she said on the first day in Committee, she was particularly anxious that certain matters should be subject to what she described as, I paraphrase, strong parliamentary scrutiny of affirmative resolutions. So they cannot be used for anything at all—absolutely not. They will have to be compliant with the European Convention on Human rights.

Lord Campbell of Alloway: The difficulty is—it happened with the report—the Government take one view and say that what they are doing is in conformity with human rights, and there is another view which says that what they are doing is not. This happens on many Bills. So it is absolutely pointless to say, "What we do has to be in conformity with human rights". What we do is what the Government consider is in conformity, but may not be. That is why my noble friends and I want this on the face of the Bill. We want clarity.

Lord Goldsmith: Let me take a moment to respond. With respect, I do not share the noble Lord's view. Indeed, I thought that he and I would be absolutely in agreement about the fact that one of the effects of the Human Rights Act is precisely that the Government cannot just say what they think is compliant with the Human Rights Act. There are two important sanctions here. A regulation has to be put forward for parliamentary scrutiny. If both Houses of Parliament take the view, using the affirmative resolution procedure, that the regulation is not compliant with
 
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the Human Rights Act or, for that matter, is undesirable on other grounds, Parliament does not approve. That is a strong sanction.

The second sanction is that the Human Rights Act gives the courts the power to interpret and occasionally to strike down legislation which is incompatible with the Human Rights Act. Here, as the noble Lord will know from his great experience, there is, to the potential litigant, an advantage in something being specified in a regulation—that is, in secondary legislation—which can be struck down, whereas primary legislation cannot be.

Both sanctions are in place, so while I understand that there can be proper and legitimate disagreement from time to time as to whether something does or does not meet the provisions of the Human Rights Act, there exists the safeguard that the Minister will make a declaration of compatibility—I have talked about this in the House on previous occasions. That means that the Minister has to be satisfied that the legislation is compatible, and that is on legal advice, or, at least, more likely than not, the courts would uphold it. Secondly, Parliament, and ultimately the courts, if they take a different view, can say so. It is in no sense an open-ended power.

I want to mention one further set of operational safeguards. If there is any concern that Clause 20 might give the commissioners powers to issue very general open-ended instructions authorising all sorts of disclosures, I am very happy to place on the record an absolute assurance that that is not the case and will not happen.

The clause requires the commissioners to be satisfied that they should exercise the ability to make a specified disclosure offered to them by regulations. They will not authorise each and every disclosure, for some are made on a regular basis, but they will have oversight of the classes of information to be disclosed and in authorising a type of disclosure will have to have regard to Human Rights Act obligations.

The clause provides for a disclosure to be made under Clause 20. First, the Treasury must be satisfied that the need for regulations is in the public interest. Secondly, both Houses of Parliament must approve the need for regulations. Thirdly, the Commissioners for Revenue and Customs must give instructions for the disclosure to be made.

In short, the clause increases the transparency of an existing authority for the commissioners in either department to authorise disclosure of information. It provides for good and strong safeguards, and this high level of scrutiny and safeguard reflects our recognition of the importance of the confidentiality of taxpayer information.

Lord Kingsland: I am most grateful to the noble and learned Lord for his very full response to this amendment.

Our concern has been made perfectly obvious, and I shall not repeat the substance of it again. In our submission, the first paragraph of Article 8 can only be constrained or resiled from in certain specific
 
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circumstances. I accept entirely that any regulation made under the clause will have, ex post, to conform with Article 8. It would be perfectly possible for somebody to challenge a regulation on the grounds that it fell outside the terms of Article 8. But in our submission, that is not a sufficient protection for the citizen.

Let me put again the question to the noble and learned Lord that I asked in my opening remarks. If the regulations to which he referred were to define a public interest purpose for disclosure as,

"to assist the regulatory functions of",

a government department, the effect would be to give HMRC an almost unfettered power to disclose taxpayer information under practically any circumstance. Does the noble and learned Lord agree with my submission that a regulation which permitted disclosure simply to assist the regulatory functions of a government department would be outside the terms of Article 8 of the European Convention on Human Rights?

Lord Goldsmith: The noble Lord has asked me a question, but I shall ask him two questions in return. First, does he think that it is outside the terms, in which case why are we debating it? Secondly, does he think that the House would accept it, in which case why are we debating it?

Lord Kingsland: I would be very surprised if the House would accept it, although the noble and learned Lord has to remember that under normal circumstances, this House would find it constitutionally difficult to vote against the Government on an item of delegated legislation. So it may be that political considerations would intervene to prevent the House voting against the Government, even though the view of the House was that the regulation was outside the terms of Article 8.

Why should the individual have to rely on such an uncertain constitutional convention? If the constraints were built into the Act, the Government would not dare to attempt to take such an initiative in the first place.

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