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Lord Goldsmith: Does not the noble Lord agree that the effect of the Human Rights Act is that the requirement that the regulations should comply with Article 8(2) is already written in?
Lord Kingsland: That is true if you look at the certification of the Bill, or if you compare a copy of the Human Rights Act with what the Government do. It is certainly true to say that there is a prospective conformity; but that does not mean that either this Government or a future government would necessarily not have a go if they wanted to put on to the statute book a delegated power that goes beyond the constraints of Article 8.
There is no useful purpose in furthering this exchange. I think that I understand where the noble and learned Lord is coming from. I shall reflect on
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what he has said and I may come back to this matter on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 to 37 not moved.]
Lord Kingsland moved Amendment No. 38:
The noble Lord said: This amendment advances the proposition that, in the case of the exemption for disclosure of information made with the consent of the individual concerned, the grant of that consent should be explicit. At first blush this might seem to be a modest proposal; but we adjudge it to be a matter of some substance.
We do not dispute that both the Data Protection Act, by virtue of Clause 22, and the Human Rights Act will apply to disclosures made under this legislation. Indeed, I congratulate the Government on the inclusion of Clause 22, the more so because too often it is omitted from similar provisions in other legislation. But, as Members of the Committee will be aware, such safeguards are not so robust as they may first appear.
The Privy Council review of the anti-terrorism Act pointed out that, in many ways, the safeguards are "illusory" since the burden lies 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, given the construction of the subsection, how is a data subject going to know whether or not his information has been inappropriately disclosed unless he has been consciously involved in an original grant of consent to disclose?
In part I suspect that I can pre-empt the Government's response here. On the one hand it is entirely justifiable to argue that it would be inappropriate to seek explicit consent in circumstances where disclosure is made for the purposes of criminal proceedings and the like. Here, so far as I can tell, there is no implication in the construction of paragraph (g) that the concept of consent, explicit or otherwise, would apply. Indeed, as is made plain in paragraphs (c) to (g), the routes to disclosure for such purposes stand outside any requirement for consent.
On the other hand, there may well be a suggestion that HMRC should not be unnecessarily hamstrung by having to seek explicit consent for disclosures that relate to no more than internal management processes. As the noble and learned Lord will already have gathered, we have some hesitancy about this in any event. We do not accept that, as a matter of course, there is a case for suggesting that administrative convenience justifies a diminution of rights to data privacy. I might favour an opt-in procedure not dissimilar to that operating in the context of electoral registration, but perhaps that goes a little further than the scope of the amendment before us.
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That said, it seems to me that the construction of the paragraph is such as to be entirely focused on circumstances where the consent of the individual concerned should be sought. Indeed, the example cited in the Explanatory Notes would appear to confirm this. I beg to move.
Lord Goldsmith: I shall deal with this briefly. Clause 18(2)(h) provides a gateway, but only where the person in question has actually consented, so there is nothing between us on that. What would be achieved by putting in the word "explicit"? I understand it to mean that it would require the taxpayer to say something along the lines of: "I allow this kind of information about these aspects of my tax affairs to be disclosed by HMRC to this person". That would be explicit, but the consequence would be that it would not cover the situation which I understand officers typically encounter. The taxpayer will say, "I want you to do this for me", and that necessarily requires a disclosure of some information in order that the thing can be done. In those circumstances, the officer would have to go back to the taxpayer and say, "I am sorry, I cannot do what you want until you spell out in these terms your consent that the information should be disclosed to this person". That would make it much more difficult to do business, not from the point of view of administrative convenience for HMRC, but for the convenience of the customer.
What is clear, and I hope the noble Lord will agree that this is what matters, is that whatever is the precise form, there has to be actual consent from the original taxpayer. It must be clear both to the officer and to those reviewing the officer's work at a later date that the taxpayer has consented to the disclosure. It should not be necessary to require it to be in any specific form so long as it is clear that there has been consent. I hope that the noble Lord agrees that that will provide the necessary protection we both seek.
Baroness Noakes: I seek clarification of the suggestion that taxpayers write to HM Revenue and Customs saying, "I want you to do this for me". In the early part of my career I handled a fair amount of tax business, but I cannot ever remember writing a letter to the Revenue which, when paraphrased said, "I want you to do this for my client". I am struggling to think of the kind of situation where a taxpayer communicates with the Revenue asking it to do something for them. I would be grateful for clarification.
Lord Brooke of Alverthorpe: Perhaps I may be of help to the noble Baroness. I am going back into the history of when I used to work in the Revenue. On many occasions people would ask us to speak to their accountant saying, "Please give him this information and have a conversation about the issue".
Baroness Noakes: I would suggest that that is adequately covered by the arrangements for the appointment of agents. The information flows only in the context of the appointment of an authorised agent.
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Lord Goldsmith: My noble friend Lord Brooke has given exactly the kind of example we have in mind. A taxpayer may ask the Revenue, "Please sort this out with my accountant". While the taxpayer does not say, "Please sort this out with my accountant by giving him the information I have submitted to you and disclosing it for this purpose", it will be absolutely clear that consent has in fact been given.
Lord Kingsland: I am most grateful to the noble and learned Lord for his response. I think that I am reassured by what he has said and, in those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Viscount Simon): In calling Amendment No. 39, I must advise noble Lords that if this amendment is agreed to, I shall not be able to call Amendment No. 40 by reason of pre-emption.
Baroness Noakes moved Amendment No. 39:
The noble Baroness said: I shall move Amendment No. 39, which is an amendment of my noble friend Lord Northesk. Not only has my noble friend's name been erased, as we discussed earlier, but the gremlins have also incorrectly allocated the amendment to my noble friend Lord Kingsland. I shall certainly move the amendment at the request of my noble friend Lord Northesk, and I hope alsosince his name now appears above the amendmentat the request of my noble friend Lord Kingsland. I shall speak also to Amendment No. 40, which is tabled in my name.
Clause 18 sets out the basic duty of confidentiality which we have been debating, and it applies to HM Revenue and Customs "officials", who are defined in subsection (4) in a way which, I believe, is intended to be broad and to cover all those connected with the Inland Revenue who potentially come across confidential information.
Amendment No. 39 is probing in nature and seeks to delete sub-paragraphs (iii) and (iv) from Clause 18(4)(a). The amendment is designed to ascertain the relationship between those who have a duty of confidentiality under Clause 18 and those who make a declaration of confidentiality under Clause 3. We have touched on this aspect before. It seems that those covered by sub-paragraphs (iii) and (iv), who are by definition neither commissioners nor officers of HM Revenue and Customs, are also not within the Clause 3 declaration requirements.
The question I want to put to the noble and learned Lord is why it is that Clause 18, which is rightly intended to be wide in its scope in order to protect taxpayers, is not backed up by the important declaration process of Clause 3. As we have already debated, Clause 18 will allow many categories of information to be disclosed and so it is important to understand what kinds of person will be within the ambit of the clause.
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I expect that the practice of the oath or declaration that we discussed on our first day in Grand Committee developed long before the Inland Revenue used outsiders to carry out its functions internally, and so it may well be that current practice has developed so that no declarations are made. However, if that is the case, I do not think we should regard that as conclusive because we have to look at the circumstances today, when we are considering whether the Bill contains the right safeguards for taxpayers.
Amendment No. 40 takes this further and proceeds on the basis that if people are going to have access to confidential information, they ought to be within the rules laid down by the clause and, more importantly, subject to the offence set out in Clause 19. The amendment seeks to probe whether the breadth of subsection (4) is adequate for the task.
The first leg of the amendment would insert new sub-paragraph (iiia) into subsection (4)(a) in order to make an explicit connection to the delegation provisions of Clause 14(1)(c), which we also discussed earlier. While it is possible that a person within Clause 14(1)(c) is covered by sub-paragraph (iii) as a person who is acting on behalf of the commissioners or an officer, I suggest that it is not absolutely crystal clear that there is a complete correlation between the persons covered in Clause 14(1)(b) and those covered in 18(4)(a)(iii). I suggest that the clause should be amended to put this beyond doubt by including a specific reference to Clause 14.
The second leg of the amendment inserts new sub-paragraph (iiib) into subsection (4)(a) in order to deal with the situation where a body corporate is acting on behalf of the commissioners or has been the subject of a Clause 14(1)(c) delegationwhich we discussed when we considered Clause 14.
As drafted, if a company is involved, the duty of confidentiality will apply to the company. I do not know whether it will apply to the company directors, but of potentially more significance are the employees of that company.
Let me be specific. At the moment there are two large IT contracts: the Cap Gemini contract in the Inland Revenue and the Fujitsu contract in Customs and Excise. If either of those bodies were acting on behalf of the Commissioners of Revenue and Customs, the corporate entities would be within the definitions of subsection (4) but their staff would appear not to be. Hundreds or even thousands of staff in those organisations are involved in the contracts, so the question of the position in relation to confidentiality arises. If they are not covered by Clauses 18 and 19, should they be? I beg to move.
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