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Lord Campbell of Alloway: My Lords, I am grateful to the noble and learned Lord the Attorney-General. I shall take very little time. This is not really the occasion on which we should engage in any detailed discussion.
The noble and learned Lord the Attorney-General misunderstands the purport of the amendment, which is akin to that of a purpose clause to ordain in principle that subsequent provision shall be made. I do not criticise the noble and learned Lord for not seeing it in that way, because, apparently, my drafting was so defective that nobody could probably appreciate anything. However, that was, and will remain, the substance of the amendment. It is limited; it does not wreck the totality of the Bill. It concerns only investigation and enforcement. Of course, I will go away and consider everything that has been said. If so advised, I shall return at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway moved Amendment No. 2:
"( ) Provision shall be made to ensure that—
(a) regulations subject to the affirmative approval of each House of Parliament are introduced to afford adequate protection by way of safeguards for use and disclosure of confidential information given by a taxpayer;
(b) confidential information given by a taxpayer for one purpose shall not be used or disclosed for any other purpose, save in pursuance of an order of a court which shall have regard to whether there has been compliance with such safeguards."
The noble Lord said: My Lords, this amendment is a very different kettle of fish. It would establish a principle. I hope that the drafting is sufficiently clear in this case. Like Amendment No. 1, it is a probing amendment to establish a principle; namely, that once the Bill is enacted, provision shall be made to ensure that,
"regulations subject to the affirmative approval of each House of Parliament are introduced to afford adequate protection by way of safeguards for use and disclosure of confidential information given by a taxpayer"
"confidential information given by a taxpayer for one purpose shall not be used or disclosed for any other purpose, save in pursuance of an order of a court which shall have regard to whether there has been compliance with such safeguards".
On this matter, which affects the structure of the Bill, the noble and learned Lord and I have already clashed on more than one occasion. On the substance of the amendment, there is a fundamental disagreement between the advice of the Joint Committee on Human Rights and the noble and learned Lord the Attorney-General. It may be resolved only by your Lordships, as confirmed by the second report of the Joint Committee on Human Rights, which was published only today. Put simply, the first question arising is whether some measures of safeguard for the taxpayer, as recognised by the ECHR, should be included in the Bill, in accordance of the advice of the Joint Committee on Human Rights.
The second question is whether confidential information given by a taxpayer should be assured, in accordance with Article 8.2 of the ECHR, by some form of legal control established by the Bill. The final question is whether the HMRC, as a public authority for the purposes of Article 8.2, should interfere with the taxpayer's exercise of this right, except in accordance with the law and, if necessary in a democratic society, in the interests of national security, public safety, the well-being of the country, the prevention of disorder or crime, the protection of health, morals and the rights and freedoms of others. Let us face it, none of these exceptions applies—or begins to apply—to the ordinary, run-of-the-mill case of assessing and collecting taxes, and making an arrangement for composition, or otherwise.
There is little to be said before one comes to some extracts, relevant to this amendment, which I propose to read from the two reports. The first report, as of 2 February, was sent to the Minister with a letter seeking a reasoned response to our reply and conclusions. That is at Appendix 1, on page 30 of our first report—House of Lords Paper 41. The reply, of 10 February, wholly failed to engage with the substance of any of our representations. That was observed in the second report, which maintained and reverted to the advice already given on the first report. In the second report, that letter is included as Appendix 1, on page 26. This is not some idea of mine, although I was admittedly a member of the committee and signed both reports. I do not always sign these reports, unless I agree with them.
In the first report, No. 41, there are about five or six extracts relevant to this amendment. Paragraph 1.18 states:
"We would remind the Government that the onus is on it to specify the precise aims which are relied upon in Article 8(2) as justifying the interference with Article 8 rights".
"Our principal concern is with the uncertain scope of the 'public interest disclosure' exception . . . The kinds of purposes for which public interest disclosure is permitted are not . . . defined on the face of the Bill, but left to be specified in regulations made by the Treasury . . . the regulation-making power is extremely wide . . . there is nothing to restrict the Treasury's power to specify a public interest justifying disclosure of confidential information".
I think my noble friend Lord Kingsland said as much the other day.
22 Mar 2005 : Column 140
"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. 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"—
"in the context of that Act's provision for public bodies to disclose information to assist criminal investigations".
What was said in the Newton report applies to this Bill:
"'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'".
"The applicability of both the HRA 1998 and the DPA 1998 is therefore no substitute for strong safeguards in the statutory scheme to ensure that the power to disclose confidential information about an individual, of which that individual will generally be unaware, is only exercised in circumstances where it is proportionate to do so".
"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".
"A general instruction that confidential information can be disclosed in the public interest is not a very satisfactory safeguard for Article 8 rights. It falls far short of being a requirement that disclosure be authorised by a senior person after considering whether, in all the particular circumstances . . . disclosure is justified".
Finally, paragraph 1.32 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. . . . In our view the same applies in relation to the present Bill".
4.45 p.m.
The letter sent by the chairman neither addressed nor engaged with the argument. The report available today makes that plain, and has about five references relevant to this amendment.
"Our main concern . . . is to ensure that the legal framework, as set out in the primary legislation, does not confer overbroad discretions to interfere with private life, but limits such powers to interfere by including on the face of the legislation"—
again, on the face of the legislation—
"criteria to help ensure that unjustified interferences do not take place . . . We are grateful for the Minister's clarification, but we remain of the view that the discretion conferred by Clause 17(1) is too broad, even when considered alongside the various safeguards contained in the statutory code of confidentiality. In our view, such powers to share information internally should contain on their face the criteria to guide decisions as to whether"—
I am sorry, I am interrupting a conversation. I should not do that. I thank the noble Lord.
"We noted that the kinds of purposes for which public interest is permitted are left by the Bill to be defined in regulations".
"We therefore welcome the Minister's clarification . . . but remain concerned at the breadth of power in this Bill to add new categories of circumstances when disclosure can be made to the public . . . For the reasons we gave in our earlier report, we have concerns about relying on internal guidance, which by definition is inaccessible to the public, as the source of more detailed guidance as to what disclosures are proportionate in the circumstances of any particular case".
It concludes on a rather sad note, but we all felt that it was fair enough:
"We are disappointed that the Minister in her response has not addressed the merits of any of these suggestions or the substance of our reasoning, but merely asserts that the Bill provides the correct balance and that Article 8 rights are fully respected in a way which enables HMRC to work effectively towards its legitimate aims. We remain of the view expressed in our earlier Report and repeat our call for the Government to give serious consideration to the stronger safeguards we have suggested, none of which, in our view, would unnecessarily impede HMRC in the pursuit of [its] . . . important legitimate aims".
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