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Baroness Noakes: My Lords, I thank the noble and learned Lord for that reply. I understand what he is saying, but Parliament gave a non-ministerial government department the functions. That is why some degree of parliamentary scrutiny should be retained for transfers. He did not explain the difference between the procedures for Scotland and Wales compared with those for England; he simply said that they were different because they came from different Acts.

Lord Goldsmith: My Lords, with respect, I said that there were differences because of the more complex procedures relating to the devolution settlement. I think that all noble Lords understand what I mean by that, at least very broadly.

Baroness Noakes: My Lords, I thank the noble and learned Lord for that additional explanation, but it does not change the fundamental point that we are transferring functions and that, for the same sort of functions, under some Acts we have affirmative procedures but under some we do not. I shall think again about what he said before Third Reading, but the issue continues to trouble me. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Exercise of Commissioners' functions by officers]:

The Earl of Northesk moved Amendment No. 4:

Page 6, line 19, at end insert ", and

( ) issuing instructions under section 20(1)(a)"

The noble Earl said: My Lords, in speaking to Amendment No. 4, I shall speak also to Amendment No. 5. Their purpose is straightforward—to ensure that
 
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instructions about the circumstances under which confidential taxpayer information can be disclosed, as provided for in Clause 20(1), should not be delegated other than to the commissioners or a single commissioner.

It was clear from our Grand Committee debates that Clause 14(1)(c)—delegation "to any other person"—meant precisely what it said. My noble friend Lord Kingsland suggested that the drafting left it open for delegation to be made to an office cleaner. The noble and learned Lord the Attorney-General, although agreeing with my noble friend that such a prospect was "wholly unrealistic", did not deny that the current text would permit that. He went on to say that,

"the delegation that is in mind will extend only to more senior staff".—[Official Report, 24/2/05; col. GC 377.]

Clearly, the Government's intention is only "in mind" and is not reflected in the Bill. I do not in any way question the Attorney-General's sincerity, but surely it is not too much to ask that we have tighter and clearer provision than we have, and that the drafting of the Bill mirrors the intended practice.

I accept that the example of the office cleaner may be a little absurd, particularly in the context of the noble and learned Lord's assurance that delegation would extend only to more senior staff. A better example might be that of a senior IT manager under contract to HMRC to install computer systems. I can readily envisage circumstances in which, perhaps for a purpose arising from a software upgrade, temptation might exist to delegate the issuing of Clause 20 instructions to such an individual. Such a delegation could compromise the integrity and confidentiality of taxpayer information. In other words, a principal aim of the amendments is to close off a potential loophole through which information could inadvertently leak. Given his comments in Grand Committee, I hope that that might offer some comfort to the noble Lord, Lord Brooke of Alverthorpe.

I recognise that the noble and learned Lord may resist the amendments on the grounds that they will, in effect, tighten the disclosure regime as compared with existing practice. I acknowledge that the Government have been wholly consistent in arguing that the Bill is all about effecting the integration of the Inland Revenue and HM Customs and Excise with no change to their legacy powers. Both in person and when I have been so admirably represented by my noble friend Lord Kingsland, I have been equally consistent in my conviction that the confidentiality of taxpayer information lies at the heart of the integrity of the tax system.

Although the Government are content that the power to delegate should be granted to more senior staff, I favour confining it to the commissioner level. There is not too much wrong in making the disclosure regime a little more robust, nor in weighting it a little more in favour of the taxpayer rather than the Revenue authorities. In returning to the matter, I should briefly add that I have attempted to pick up the entirely valid observations of the noble Lord, Lord Newby, in Grand Committee. He rightly referred to forms of practice
 
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within the Revenue authorities whereby delegations were often made to a single commissioner. I hope that he is content that I have adequately drafted the amendments to reflect that. I beg to move.

Lord Newby: My Lords, I support the amendments and the arguments that the noble Earl set out. I am grateful to him for amending his amendment to take account of concerns that I expressed at an earlier stage. The problem with which the noble and learned Lord the Attorney-General attempted to grapple in Committee was the "office cleaner conundrum", and assurances might be given that public interest disclosure would not be delegated to too junior a level or to people who were not officers of the merged department at all.

I heard what the noble and learned Lord said at that point, but the principle of making public interest disclosure a pretty stiff test is a good one. With one caveat, it seems entirely sensible to require individual commissioners to sign off such disclosure. My only caveat is that, if in any week there were 20,000 pieces of disclosure—or even 1,000—it would clearly be impracticable. One would then be looking for some assurance from the Minister on the level to which staff delegation might apply. However, if one is talking about a few tens of decisions a week, it seems perfectly practicable and reasonable to expect an individual commissioner to look at those and sign them off. Subject to that, my inclination is to support the amendment.

Baroness Noakes: My Lords, we support my noble friend's amendments. The power to delegate in Clauses 12 to 14 is very broad, and the exclusions from that power set out in Clauses 13(3) and 14(2) are very narrow. Many things could be brought within the need to confine action to the commissioners, but the amendment is relatively modest, limiting itself to the disclosure of information on public interest grounds under Clause 20(1)(a).

Taxpayer confidentiality is crucial. The amendments tabled by my noble friend Lord Campbell of Alloway have already highlighted the importance of that. The issues should not be subsumed within administrative arrangements and confined to being executed by officers or involving committees or other delegations. They should be retained by the commissioners themselves. I fully accept the proviso of the noble Lord, Lord Newby—that if a massive number arose under Clause 20, practicality might well require a slightly different amendment. Subject to that, I hope that the noble and learned Lord the Attorney-General feels able to support the amendment.

5.30 p.m.

Lord Goldsmith: My Lords, I am sorry to disappoint the noble Baroness; I do not. What the noble Earl proposes is not to prevent a delegation to the office cleaner; Amendment No. 4 would prevent something being delegated below two commissioners, and Amendment No. 5 refers to one commissioner. Each case would still have to be considered by at least one commissioner under even the more generous of
 
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the amendments—Amendment No. 5—or by two commissioners if only Amendment No. 4 had effect. As he says, that would go back from the present position.

I want to remind noble Lords what the purpose of the public interest disclosure regulations will be; we will debate them under a later amendment tabled by the noble Earl. As I indicated in Grand Committee, we were anxious to deal with the part of the human rights obligations that requires, in this particular case, that something that engages Article 8 is,

"in accordance with the law".

That phrase is met well by setting out detailed regulations which identify the legitimate purposes, unlike, as is the present position, disclosures which are made in the public interest under implied powers rather than under express statutory powers. This is a new provision to meet the desirability of being clear about what disclosures there can be, which will overtake the current implied statutory power.

I remind noble Lords that we have already exposed the public interest regulations that we have in mind in the draft. Indeed, the noble Earl has taken that as his text for a later amendment.

The noble Lord, Lord Newby, and the noble Baroness, Lady Noakes, asked about the degree and number of cases there might be. The disclosure with which we are concerned here—I shall be corrected from the Box if I am wrong—is not limited to disclosure of confidential taxpayer information. This goes back to the ability to use information in connection with any other function if it meets certain categories. One of those is Clause 20.

Let me give an example of when disclosure may be required. I also have some statistics. Disclosure in the public interest may need to be made at very short notice, when there is an imminent or urgent danger to the public. I have been given the example of an excise officer visiting a fuel depot for the purpose of conducting an assurance visit who comes across unsafe filling practices. He will want to pass on that information without delay to the appropriate authority, such as the local council or trading standards office.

Under the Bill's proposals he can take the information to a more senior officer who will authorise disclosure to the relevant authority, rather than having to find a commissioner or, under Amendment No. 4, two commissioners. Under the proposed amendment, unless the commissioners had given a blanket authorisation, having foreseen all the circumstances—I apprehend that the more general the authorisation, the more unhappy noble Lords would be—there would be a delay with potentially serious consequences.

Another example refers to disclosures that aid joint working between law enforcement agencies. It is common for a joint intelligence cell to be based at airports. They share information, for example, about a target flight or a target passenger, who may be arriving at a particular time or who meets a certain profile. Customs staff, immigration staff and the police may be involved. In a relatively short period there could be several instances of sharing information.
 
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It would be difficult for the commissioners to predict all the circumstances that might arise. As such, that type of disclosure works best when a responsible individual in the team has the authority to issue instructions to make the disclosures, rather than escalating each and every one.

How many of those might there be? Work has been done for me for which I am grateful. In February this year at the Dover joint intelligence cell, there were 99 disclosures, suggesting a volume of a little over 1,000 disclosures. Dover is one of the busier joint intelligence cells. At the new Heathrow joint intelligence cell, there were 30 disclosures in January 2005, and the monthly volume is expected to increase. There are 21 joint intelligence cells operating nationwide. If one extrapolates from, say, 50 disclosures a month, that suggests, from just this source, 10,000 disclosures annually nationwide—a large proportion of which would require individual authorisation because it is not possible to predict the circumstances in which disclosure will arise.

Assuming that considering those would require at least a few minutes of a commissioner's time, that suggests about 1,500 commissioner hours each year just for this purpose. Even if we accepted Amendment No. 5 so that only one commissioner was required, that would equate to one of the department's six commissioners doing nothing all year but authorising this sort of public interest disclosure.

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