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The noble Lord said: By now the Committee will probably say that it is only too well versed as to our discomfiture with Clause 20. Be that as it may, we are dealing here with a matter about which my honourable friend in another place, Mr Andrew Tyrie, has said:
"It is vital that nothing in the Bill threatens taxpayer confidentiality. If people do not have confidence in the Revenue department, they will not share information and the tax yield will suffer".[Official Report, Commons, 8/12/04; col. 1188.]
"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 made by the Treasury. Moreover the regulation-making power is extremely wide".
That creates a dilemma. I acknowledge that under subsection (6), the relevant regulations would be subject to the affirmative procedure. But, as we all agree, this is a hugely sensitive area that if got wrong could have very damaging consequences to the integrity of the tax base. Moreover, as we all know, the opportunity to correct any deficiencies or infelicities that might be exposed by the due process of scrutiny of secondary legislation, be it affirmative or negative, is all but non-existent.
In terms, therefore, both the Government and Parliament could be trapped into having to accept imperfectly drafted regulations, which could have the inadvertent effect of undermining public trust in the confidentiality of taxpayer information and thereby having a knock-on effect on the tax basepurely and simply because, given the sort of time constraints that could well apply, there would be no other alternative.
In reflecting on a resolution of that dilemma, I happened to cast my eye over the text of the Identity Cards Bill and a potential solution suggested itself. The making of regulations at subsection (6), rather than being affirmative, could be made subject to the super-affirmative procedure espoused in that Bill. Accordingly, in the new clause, I have sought to transpose the appropriate text from the Identity Cards Bill and superimpose it on to this Bill as a substitute for subsection (6).
In a sense, I would express this in terms of extending an olive branch to the Government. We still favour the deletion of Clause 20 in its entirety. My impression is that, on behalf of the Government, the noble and learned Lord the Attorney-General still favours its retention in full. That being so, the new clause has the potential virtue of requiring us both to move closer to each other's position in the hope that we might be able to meet somewhere in the middle. I beg to move.
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Lord Newby: I have considerable sympathy with this amendment. The system of considering statutory instruments in Parliament is little short of farcical. We spend a considerable amount of time with statutory instruments before us. The noble Baroness and I had that pleasure earlier this week.
In this House, a Minister reads out, often, a long, identical speech to that made in another place. We then ask one or two desultory questions, otherwise we feel that our presence cannot be justified even to ourselves. The Minister, hopefully, answers. If he cannot, he or she offers to write and at least we feel that we have served some purpose.
The truth is that we have served no purpose whatever in scrutinising the regulations because they are unamendable. If they are unamendable, the value of scrutiny is almost totally negated. I therefore consider that the words in subsection (2)(c) of the new clause to be inserted after Clause 20, which state,
is the key point in the proposal. I am pleased that some good might be coming of the Identity Cards Bill. I hope that this form of dealing with secondary legislation becomes the norm. As I say, I think that the current form is farcical and gives the appearance that Parliament is scrutinising something and can have an effect on something, which in reality it cannot.
Baroness Noakes: I should like to say a few words as the noble Lord and I often speak to statutory instruments. I believe that his comments were promoted in particular by the fact that we have started to discuss statutory instruments in Grand Committee, which makes them feel even less purposeful. Although I know that the noble and learned Lord will refer to my approbatory remarks in relation to affirmative procedures as compared with negative procedures, I believe that affirmative procedures are better than negative procedures because negative procedures require you to spot that a statutory instrument is already in effect or about to come into effect and to pray against it in order to bring attention to the matter.
My approval of affirmative procedures is only relative to the negative procedure. I share the view of the noble Lord, Lord Newby, that because statutory instruments are unamendable, we go through some kind of ritual dance in relation to them and they are not sufficiently substantive, which is why I support my noble friend's amendment.
Lord Goldsmith: I wish to make three points. The first is that I most certainly do stand by the proposition that Clause 20 is necessary, valuable and important. Not to have Clause 20 would mean that the people of this country, and other peoples too, might be deprived of the possibility that, through an appropriate and proportionate disclosure of information, crime, or the consequence of crime, might be prevented, or public health might be advanced. Those are all very proper European Convention on Human Rights reasons for
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disclosure of information and therefore I most certainly stand by the proposition that Clause 20 is necessary.
Secondly, we are talking here about parliamentary scrutiny. Everything that I have said up to now supports the proposition that we believe that there should be parliamentary scrutiny of these regulations, which is why subsection (6) requires that they should be the subject of affirmative resolution.
I am reluctant at this time on a Thursday to embark either on an explanation of why the provisions in the Identity Cards Bill are there for a particular reason having regard to the nature of that proposed legislation, or to have a general debate on how this House approaches statutory instruments. Given the comment of the noble Lord, Lord Newby, that all that statutory instruments in this House do is, as it were, provide an opportunity to ask a few desultory questions, I am slightly tempted to say that all this amendment does is to provide the opportunity to ask a few desultory questions twice. It simply puts forward proposals not for a single resolution but for things to happen twice.
Lord Goldsmith: I understand the point that the noble Lord, Lord Newby, is making. Perhaps I should not have tried to make my main point by making rather a cheap point at his expense. I withdraw that. The important point regarding that issue is that we are not talking about changing the constitutional arrangements as between this House and another place.
I suggest that the most important point is the following. This is precisely the kind of area on which we look to the Delegated Powers and Regulatory Reform Committee to advise us. The conclusion of that committee in its ninth report published on 21 February is,
I agree with those findings and invite the Committee to do so as well. There is a risk in the approach that has been proposed in this amendment that it would compromise the ability of HMRC to react quickly to emerging issues where a disclosure would clearly be in the public interest by requiring this two-stage approach.
Despite what noble Lords have said, I have little doubt that the provision for affirmative resolution provides a comprehensive opportunity for scrutiny of the proposals. It will be open for those regulations to
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be rejected if noble Lords are not satisfied with them. Therefore, I invite the noble Lord to withdraw his amendment.
Lord Kingsland: I am most grateful to the noble and learned Lord the Attorney-General for his reply. In the last sentence or two of his reply the noble and learned Lord suggested that one consequence of the process of affirmative resolution might be that your Lordships' House would reject a proposal by the Government. If the noble and learned Lord is saying that that would be an appropriate constitutional act for the House to take, I am much reassured by his approach to my amendment. If, however, the House would subsequently be criticised for taking such a decision on the ground that it was exceeding its constitutional powers, that would profoundly undermine the logic of what the noble and learned Lord said.
Therefore, I shall take it that, in the context of this Bill at any rate, the powers of your Lordships' House to scrutinise delegated legislation legitimately include the constitutional right to say no without subsequently being attacked by the Government for behaving unconstitutionally. In those circumstances, I am not surprised that the noble and learned Lord
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