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Lord Goldsmith: There are two parts to the amendment. The purpose of the provisions that Amendment No. 39 would remove is to ensure that persons other than a commissioner or an officer of HM Revenue and Customs, but who are acting on behalf of the commissioners or are members of a
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committee—we have looked at Clause 14 already—would also be subject to the important duties of confidentiality under Clause 18. As I understand it, the noble Baroness's concern is to ensure that they are subject to that obligation rather than removed from it, which is what Amendment No. 39 would appear to do.
It is important—and it seems that we agree on this—that people who are not officers or commissioners but are carrying out the commissioners' work should be subject to the same obligation of confidentiality as provided by Clause 18. The noble Baroness asked why they should not sign the same solemn declaration. We take the view that the witness declaration, which was added in another place, has a certain symbolic quality and that is why it may be appropriate for staff to make it. But we do not think it necessary for non-executive directors, contractors or consultants to make such a declaration. It does not provide any actual additional legal safeguard because that is provided by Clauses 18 and 19 through the statutory duty and the criminal sanction. In any event, there are other ways to reinforce a duty of confidentiality if those dealing with these persons think it appropriate to do so. It is also right to say, as the noble Baroness recognises, that these groups are not at the moment required by statute to sign the Inland Revenue declaration.
It is certainly the intention that subsection (4)(a)(iii) should capture the categories of persons whom I understand Amendment No. 40 is designed to catch—that is to say, any other person to whom the commissioners have delegated a function, and the employees, direct and indirect, of those any other persons. That is the clear view of those behind me, so there is no need for an amendment to reach the position that the noble Baroness and I want to see.
Baroness Noakes: When the noble and learned Lord spoke earlier about confidentiality, he explained that the solemn declaration was one aspect of the safeguards offered to taxpayers, but that somehow it is not necessary for those involved in the new organisation who do not happen to be on the payroll. That could embrace many different people. So we find that fundamentally unsatisfactory as a response. What the noble and learned Lord has said does not satisfy the point made in Amendment No. 39.
We do not understand why potentially large numbers of people should not make some kind of solemn attestation about their understanding of confidentiality. If it is not the statutory declaration in Clause 3 it should be something else, but I have not heard the noble and learned Lord say that anything else is proposed. Yet we know that the practice has evolved over the years, in particular over the past decade, of having large numbers of people operating within both Customs and Excise and the Inland Revenue who are not direct staff. I am sure that the noble Lord, Lord Brooke, is only too aware of that.
These people will not have signed the statutory declaration and there does not appear to be anything else to seize their attention. They may come from a
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different basic culture than that of public service and it may be even more necessary to provide them with some form of declaration.
Lord Goldsmith: In the hope that it helps the noble Baroness, while I stand by what I said about the statutory declaration being considered very appropriate for those who are direct staff, it may not be so appropriate for others. However, I shall certainly take away the question put to me about alternative methods that could, when appropriate, be used to remind people of the obligation which we both agree will be imposed on them both in fact and in law under this statute. I shall take the issue away and consider it further.
Lord Newby: Can I ask the noble Baroness whether she has raised this issue as a result of a real problem encountered in her experience? All these people are employed by Cap Gemini. Is there is a sense that they do not understand the obligations of confidentiality under which they work, and are there instances of them not honouring those obligations?
Baroness Noakes: I am not sure that I can answer the question put to me by the noble Lord, Lord Newby, but the fact remains that if we are concerned about employees, we ought to be concerned about the very large numbers of other people who are now operating within the Inland Revenue—and of course they work with taxpayer data. By definition they are hired to process taxpayer data. The fact that such issues have not arisen so far should not be a barrier to thinking about whether they should be brought into this kind of arrangement. I say that because of the way that employment procedures have progressively changed as a result of contracting-out arrangements, public-private partnerships or whatever fancy term is used to describe these arrangements.
Perhaps I may turn to Amendment No. 40 on a point of clarification. The amendment was brought forward to be helpful and to ensure that we actually capture in Clause 18(4) all those whom we think ought to be brought within the duty of confidentiality and thus subject to the offence of breaching it by wrongful disclosure. It comes down to whether the words,
completely and absolutely captures anyone to whom functions are delegated under Clause 14(1)(c), and beyond that any person employed by that person. We seek clarification that anyone brought into the Revenue under the delegation processes will automatically be acting on behalf of the Revenue.
My amendment was tabled to seek absolute clarity. If a function is delegated to someone under Clause 14(1)(c), that person must come within the statute, thus ensuring no lack of clarity.
Lord Goldsmith: The noble Baroness will see that I have a piece of paper, which I have read, that says:
I say that because the noble Baroness has asked me again. I have just sought confirmation that that is what we are saying.
Baroness Noakes: And that they always are acting on behalf of the Revenue?
Lord Goldsmith: Well, when they are acting on behalf of the Revenue; obviously not if they are doing someone else's job.
Baroness Noakes: I am grateful for the noble and learned Lord's assurances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Public interest disclosure]:
Lord Kingsland moved Amendment No. 41:
The noble Lord said: In moving Amendment No. 41, I shall speak also to Amendment No. 42.
We have already examined the generality of Clause 20. I trust that the Committee will recognise that the misgivings to which I have alluded, and which notwithstanding the powers of persuasion of the noble and learned Lord the Attorney-General remain substantially unalloyed, are equally applicable here. In particular, as I have made plain, I am anxious about the apparently unrestricted nature of the public interest exemption.
In the context of the amendment, the facility of the commissioners to issue instructions of both a specific and a general character in respect of permissible disclosure seems to me to enhance the breadth of the provision. The observation of the Joint Committee on Human Rights on this point is telling. It states:
"A general instruction that confidential information can be disclosed in the public interest is not a very satisfactory safeguard for Article 8 rights".
Indeed, I infer that part of the underlying purpose of the power to issue "general" instructions is to satisfy the requirement of "administrative convenience". As a general point here, at paragraph 1.17, the Joint Committee, in commenting on paragraph 12 of the Explanatory Notes, makes the entirely legitimate point that:
rightly or wrongly, I interpret that as a euphemism for "administrative convenience"—
"to guarantee the appropriateness and proportionality of using personal information does not satisfy the requirement that interferences with the right to respect for private life must be 'in accordance with the law'".
Against that background, the amendment seeks to confine the commissioners to the issuance of specific instructions. I should perhaps add that I am rather more worried about the provision in the context of Clause 20 than Clause 21.
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It goes without saying that the noble and learned Lord the Attorney-General would greatly assist if he were to elucidate how it is envisaged that the distinction between general and specific instructions would operate in practice, perhaps to the extent of furnishing the Committee with appropriate examples for both clauses. I beg to move.
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