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The Earl of Northesk moved Amendment No. 5:
"( ) The Commissioners or a number of Commissioners may delegate their function of giving instructions under section 20(1)(a) to a single Commissioner by virtue of subsection (1)(a), but may not delegate that function by virtue of subsection (1)(b) or (c)."
On Question, amendment agreed to.
[Amendments Nos. 7 and 8 not moved.]
Clause 20 [Public interest disclosure]:
The Earl of Northesk moved Amendment No. 9:
"(1) The Commissioners may instruct disclosure if they are satisfied that it is made in the public interest and falls within one of the following descriptions, namely disclosure—
(a) to public bodies in order to honour international and other agreements to which they and the United Kingdom or Her Majesty's Government are party, in relation to the movement of persons, goods and means of transport into and out of the United Kingdom, where the disclosure is necessary for the purposes of the prevention or detection of crime, fraud or evasion,
(b) to a body responsible for the regulation of any profession, for the purposes of reporting misconduct on the part of its members, where a member of a profession has provided services to a client of his which affect the client's proper compliance in relation to any matter which is subject to the exercise of any function of the Commissioners or officers of Revenue and Customs within the meaning of section 51(2),
(c) to a constable where the disclosure is necessary for the purposes of facilitating cooperation between, or the exercise of respective functions by, that person and the Commissioners, in relation to the movement of persons, goods and means of transport into and out of the United Kingdom,
(d) to the National Criminal Intelligence Service, for the purpose of enabling it to exercise its criminal intelligence functions under section 2(2) of the Police Act 1997 (c. 50) (general functions of the NCIS services authority and NCIS), in relation to the Commissioners as a law enforcement agency within the meaning of section 2(3)(a) of that Act,
(e) to a body exercising public functions in relation to the protection of public health and safety,
(f) to the Police Information Technology Organisation for the purpose of recording on the Police National Computer information about suspects, arrests and the disposition of criminal investigations and seizures, and to users with the right of access to that computer
(1A) Where a disclosure has been made by virtue of subsection (1), further disclosure shall not be made without the written consent of the Commissioners or a person authorised by them.
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(1B) Disclosure is also in accordance with this section (as mentioned in section 18(2)(b)) if made—
(a) on the instructions of the Commissioners (which may be general or specific), and
(b) for a purpose of a kind specified in regulations made by the Treasury, and such regulations may vary the provisions of subsection (1)."
The noble Earl said: My Lords, by leave of the House I shall also speak to Amendments Nos. 10, 11 and 12. They all relate to the order-making powers provided for in Clause 20 and devolve into two sub-groupings, the second flowing logically from the first.
The first sub-group comprises Amendments Nos. 9 and 11. Here, I thank the noble and learned Lord the Attorney-General for making available the draft regulations. As is self-evident from Amendment No. 9, I have sought to transpose their terms into the Bill. The other amendment in this sub-grouping—Amendment No. 11—would delete subsections (7), (8) and (9).
I find myself in an unusual, even pleasurable, position. I can pray in aid the support of none other than the noble and learned Lord for the proposition embodied in the amendments. He will remember the debate on Amendment No. 31 in Grand Committee, moved on my behalf by my noble friend Lord Kingsland. Some of the observations of the noble and learned Lord the Attorney-General at that time have a special relevance here.
First, I have no doubt that the noble and learned Lord will recall saying:
"Let me be clear that HM Revenue and Customs will always use statutory gateways for disclosure where it is possible".—[Official Report, 24/2/05; col. GC 374.]
That is precisely what would be achieved by making the amendment, which guarantees that HMRC can use the statutory gateway of the Bill that the noble and learned Lord maintains is the Government's preference.
The noble and learned Lord was also keen to emphasise the narrowness with which the respective areas of public interest disclosure in the draft regulations had been defined. I do not dissent from that view, but there are also provisions of substance. For example, it is not uncommon to embody the text of paragraph (a) of the amendment, dealing with international treaty obligations, in primary statute.
Moreover, I accept that, as the noble and learned Lord put it in Grand Committee,
"they are all proper, laudable, public-interest reasons why disclosure should be permissible".—[Official Report, 24/2/05; col. GC 375.]
As such, I can see no objection to putting them in the Bill, a view shared by the Joint Committee on Human Rights. In its sixth progress report, addressing the Government's response to its original concerns, the Committee stated:
"We remain of the view that the broad categories of disclosure in the public interest, and the descriptions of the types of persons to whom such disclosure is to be permitted, should be contained on the face of the Bill itself, for the reasons of legal certainty which we have previously explained".
As the JCHR made plain, that has the desirable effect of enhancing the transparency, clarity and foreseeability of the disclosure regime, an outcome that I would have anticipated that the Government would welcome.
In Grand Committee the noble and learned Lord also said:
"The draft regulations demonstrate, as I understand it, the things currently envisaged for the regulation".—[Official Report, 24/2/05; col. GC 375.]
We can therefore infer that neither the Inland Revenue nor the Customs and Excise is at this time contemplating any other public interest types of disclosure as potential candidates for the Clause 20 order-making power. That being so, the requirement for the transitional procedure encapsulated in subsections (7), (8) and (9) becomes otiose.
6 p.m.
I turn to the second sub-grouping, which contains Amendments Nos. 10 and 12. Taken together, these provide for a super-affirmative, rather than an affirmative, procedure for any subsequent regulations. To save the noble and learned Lord the Attorney-General articulating it in response, I acknowledge that the Delegated Powers and Regulatory Reform Committee has indicated that it considers the affirmative procedure to be appropriate in this instance. I acknowledge too that the use of the super-affirmative procedure could create tension between a potential requirement for HMRC to respond urgently to emerging circumstances and the length of time that the proposed form of scrutiny might take.
However, I am not persuaded that this is an especially powerful argument. As my noble friend Lord Kingsland observed in Committee:
"Public interest as a basis for disclosure would . . . be relatively rare".—[Official Report, 24/2/05; col. GC 379.]
Indeed, the noble and learned Lord the Attorney-General was content to confirm that. He said:
"I want to place on the record that the power to regulate for that type of disclosure will be used only sparingly to create new regulations".—[Official Report, 24/2/05; col. GC 374.]
To that extent, and taking into account what would be achieved by Amendment No. 9, it is not unreasonable to suppose that the need for future regulation in this area, in so far as it may be required at all, will be decidedly infrequent.
Quite apart from that, the engagement of the disclosure regime with Article 8 of the ECHR taken with the importance of taxpayer confidentiality in maintaining the integrity of the tax system imply that parliamentary scrutiny of any future regulations needs to be as robust and meaningful as possible.
I realise that, so far as the affirmative procedure is concerned, an appropriate declaration as to the compatibility of the relevant regulations with the Human Rights Act has to be made. But, as my noble friend Lord Campbell of Alloway knows only too well, such statements of conformity are not always universally accepted. I also recognise that the noble and learned Lord the Attorney-General is satisfied that the courts offer adequate recourse against any inadvertent
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incompatibilities with the Human Rights Act that may arise. But, inevitably, that would occur after the event. The damage to the individual taxpayers involved and, conceivably, to the integrity of the tax system, would already have been done.
The noble Lord, Lord Newby, has put his finger firmly on the pulse of what matters. As he rightly identifies, the key component of the new clause is the power to amend any regulations that may be presented in the future. Logically, this should have the desirable effect of minimising the likelihood of any future public interest disclosure regulations that offend against the Human Rights Act passing into law. All in all, resort to the super-affirmative procedure in this instance has a great deal going for it. I beg to move.
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