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Lord Newby: My Lords, this group of amendments deals with two linked matters. Amendment No. 9 relates to placing on the face of the Bill the initial descriptions of disclosure that would be covered. In doing so, the noble Earl is following the recommendation in the report of the Joint Committee on Human Rights, which was published today.
As an aside, there are a number of other proposals and recommendations in the Joint Committee report, which we have seen in the past hour or two, that we want to look at and, possibly, respond to at Third Reading. With the imminence of an election, we may be denied the opportunity, which is unfortunate. We have not had a chance to reflect all the views of the Joint Committee in the amendments before us today.
However, this amendment does reflect the Joint Committee's views and is completely costless. It is difficult to see how the Government could possibly object to it. They are going to legislate, by statutory instrument, to do what this amendment does. The Joint Committee said that it would be better for transparency, and for other reasons, if the provision were on the face of the Bill. All that is required is to take it from secondary legislation and put it on the face of the Bill. It has no substantial effect whatever but it helps the quality of the legislation.
As for the super-affirmative resolution procedure, the Minister and I disagreed in Committee about the extent to which it was two bites at the cherry. But the key aspect is whether Parliament has the power to amend an order. There are orders that Parliament should be debating properly and, possibly, amending. There are other orders that Parliament should take through the affirmative route, but that are not of such nature that they warrant the super-affirmative approach.
We had a classic example of this last week when on the same evening we debated the repeal of the Trading Stamps Actwhich noble Lords would agree was desirable and therefore did not justify the super-affirmative approachand the approval of the Operating and Financial Review Regulations, which were a major change to company law and which every body in the country with an interest, but Parliament, has had a chance to amend during the past year.
There is a class of statutory instruments that are of such a nature that Parliament should have the opportunity to amend them or, in rare cases, to
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recommend that they are not proceeded with, without using the nuclear weapon that we currently have when statutory instruments come before your Lordships' House. The question is whether, if one accepts this approachI am not sure that the Minister does as a matter of principlethis area is one for which the super-affirmative approach is necessary.
On balance, I think that the issues are important enough for Parliament to have the chance to look at them properly and, if it is worried about them, to make recommendations about how they might be modified. It is an "on balance" view, but I fall on the side of adopting the approach set out in this amendment; that of using the super-affirmative approach in these cases. Therefore, we will be supporting this amendment.
Baroness Noakes: My Lords, we support my noble friend's amendment. The noble Lord, Lord Newby, referred to the late receipt, for the purposes of this debate, of the latest report from the Joint Committee on Human Rights. It is interesting that, in the space of six weeks from the earlier report on the Bill, we have moved from its sixth report of this Session to its 13th report of this Session. The nature of the legislation that the Government are trying to ram through Parliament at the moment is raising so many fundamental issues relating to human rights that we must be very grateful for the work that the Joint Committee is doing on behalf of Parliament in bringing these items to our attention. The noble Lord, Lord Newby, is right that the report raises further issues that may need further amendments to the Bill. I shall say no more than that I fully support my noble friend.
Lord Goldsmith: My Lords, I start by noting with considerable pleasure that the Official Opposition take the view that the Human Rights Act is something that should be enforced in all ways and at all times.
In dealing with these amendments, I want to emphasise a point that is escaping attention in some of our debates. The provisions in Clause 20 are not concerned with taxpayer information only. Clause 20 is necessary because of the prohibition imposed by Clause 18(1) that:
I respectfully think that it would help, when considering what additional safeguards noble Lords are insisting on, to recognise that we are not just concerned with taxpayer confidentiality, which is subject to strict safeguards under the Bill. As I was trying to make clear during the debate on the previous amendment, we are also concerned with, for example, information discovered in the course of a law enforcement operation. Noble Lords have taken a view about who should have to give the authority in relation to that. The House has spoken. However, with
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regard to the present provisions, and the amendments that the noble Earl puts forward, I invite noble Lords to bear that point in mind.
I need to deal with several points. The first is that which is raised by Amendment No. 9: to put on to the face of the Bill those provisions which are in the draft regulations. I start with the proposition that there is no difference between us: that those are all appropriate circumstances in which the public interest disclosure should be permissible. There is no point of principle: that we are proposing under the draft regulations a disclosure which goes beyond that which noble Lords think is appropriate. It is a matter of principle; they accept that. That is what I understand lies behind the amendment.
Indeed, I understand that the amendment goes further. The amendment also accepts that it should be possible to add to that list not by primary legislation but by regulation. That is the effect of the noble Earl's amendment. There is no difference of principle between us about that either. In those circumstances, what is the justification for making this change to the Bill, putting something into it that we shall do in any event by regulation? The noble Earl saysand to some extent the noble Lord, Lord Newby, supports himthat there is no disadvantage. There are disadvantages. With respect, I do not think that the noble Earl has seen what they are.
First, by hard-wiring, if I may use that expression, into the Act itself those matters which were going to be in the regulation, the noble Earl is insisting on giving the Government a Henry VIII power for which they have not asked. He proposes that it should be possible to amend the primary legislation which sets out those public interest disclosures. The noble Earl shakes his head. But what then is the effect of subsection (1B)(b)? It states:
He is proposing that the Government should have the power to amend primary legislation by regulation. We have not asked for this power. It is somewhat ironic that the noble Earl, whose reason for putting forward the amendment is to increase parliamentary scrutiny, proposes one of the powers which always causes difficulties in this House, and rightly so: the power by regulation to change primary legislation. That is the first disadvantage.
Secondly, I draw attention again to what the Delegated Powers and Regulatory Reform Committee said on this clause. I note that it was clear that it did not consider the power to be inappropriately wide. It states that the affirmative procedure will provide an appropriate level of parliamentary scrutiny for any proposals to add to circumstances in which disclosures may be made. Its views might have differed had this included the Henry VIII power that the noble Earl would now insist we took.
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Thirdly, we have placed a great deal of emphasis on the safeguards surrounding public interest disclosures, including criminal sanctions. But the noble Earl's amendment has managed to drop the criminal sanctions in relation to this set of disclosure provisions. The criminal sanction for unauthorised disclosure which exists in Clause 20(5) of the Bill is activated only by the making of regulations under Clause 20(4) and would not apply, therefore, to those things which are covered by what he now wishes to do.
Finally, grateful as I am to see the enthusiasm of noble Lords for the Human Rights Act, I draw the noble Earl's attention to this fact. By putting these categories into primary legislation he prevents the courts taking a view, if they did in the futurewe do not think for a moment that they will, but it is a question of powerbecause if they are in regulations the courts are able to strike them down as going too far. If they are in primary legislation, they are not able to do so. Far from enhancing the human rights protection, he has succeeded in taking part of it away. That relates to the first of the amendments.
The effect of Amendments Nos. 10 and 12 is to return to the question of parliamentary procedure. With respect, I am disappointed to see that that issue has been returned to. Again, the regulation-making power has been examined by the Delegated Powers and Regulatory Reform Committee which was satisfied of it. The committee said:
"We do not consider the power to be inappropriately wide and we believe that the affirmative procedure provides an appropriate level of parliamentary scrutiny for proposals to add to circumstances in which disclosure may be made".
When the Delegated Powers and Regulatory Reform Committee has reached that view, I respectfully suggest that your Lordships should be slow to insist upon something which it has not proposed. It is the expert in this field and that is the conclusion that it has reached.
Why is it right? It is right because there are strong safeguards in the act for taxpayer confidentiality. By imposing the affirmative procedure, Clause 20 makes sure that regulations which are passed should be subject to that degree of scrutiny. What more does the noble Earl want? He has picked up the reference in an entirely different Billthe Identity Cards Billfor a super-affirmative procedure. I remind noble Lords that the enhanced arrangements in the Identity Cards Bill apply to regulations that may be introduced to make registration for identity card purposes compulsory. In such a case, where practice subsequently develops beyond that applying when the primary legislation is introduced, it is quite right and proper that Parliament should have the chance for a more detailed study of the plans. But that is quite different in the case of the regulations. The policy behind these is absolutely clear and we all agree with it. The policy is that where there is a need for public interest disclosure that should be permitted so long as one defines with reasonable specificity what that public interest disclosure should be.
The regulations made under Clause 20 cannot change that fundamental policy. It is an entirely different position from that in relation to the Identity
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Cards Bill. The position is inadequate and dangerous. First, it would require Parliament to consider new grounds twice. So if someone takes the view that there is a further real need for a public interest disclosure, Parliament is required to consider that twice. It is a relatively narrow thing that would be added and yet we have to consider it twice. I suggest that that is not a good use of parliamentary time. More than that, it would prevent HMRC reacting rapidly to emerging situations requiring a disclosure in the public interest.
The noble Earl says to me, "But the Attorney-General said it would happen only sparingly". Yes, we do think that it will happen only sparingly but it may still happen in circumstances which need a quick reaction. I am afraid that events over recent years have all too plainly demonstrated that. It is no answer to say that although this may happen only sparingly we require a super-affirmative resolution; we require it to come twice to the House before we can make a sensible disclosure in the public interestwhich is all that this clause can deal with. That could prevent any new regulations coming into force for 60 days and that could be a dramatic inhibition on doing something which is necessary to help or protect people in the public interest. It is only about the public interest. That is what this is all directed towards. So we would have the effectiveness of HMRC limited.
Thirdly, and I know where the noble Lord, Newby, is coming from, the real point he makes is not so much that it happens twice but that it provides an opportunity for amendment. Amendment of what? If HMRC puts forward that there should be a further public interest disclosure category, what is the amendment going to be? It is not like the Identity Cards Bill where there will be much debate about the policy of making them compulsory.
This is not the approach the House takes to resolutions which come before it. I recognise the argument that there is a case for saying that in future the power of this House to amend resolutions should be greater than it is at the moment. But that is not where we are. I really suggest to noble Lords that this is neither the Bill in which to make a change nor the place to debate the general policy.
So, what is this matter ultimately about? It is about the ability of Revenue and Customs to make a disclosure in accordance with regulations where the Treasury is satisfied that it is in the public interest. We know the kind of thing that that is concerned withpreventing crime and disorder, on public health and preventing disasters, that sort of thing. I invite the noble Earl to recognise that to delay the ability to pass regulations is really not appropriate for this Bill.
I know that the noble Earl is concerned about taxpayer confidentiality. I have been from the beginning of the passage of the Bill, as I am sure the noble Earl will recognise. The Bill contains some very strong safeguards. We have statutory prohibitions, criminal sanctions, prohibitions, and a requirement that you cannot just say, as you can at the moment, "It is in the public interest, therefore let it be disclosed". We want to have those specified. But to insist on going
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further in these circumstances is going too far. That is not because I disagree with the importance of confidentiality. I do not, although I remind noble Lords that this issue is much wider than taxpayer confidentiality. It is because the provision puts an unnecessary inhibition on the operation of the department by insisting that it takes place in this way. So I resist both sets of amendments.
The noble Earl says that the Amendment No. 11 to leave out the provisions in subsections (7) to (9) would not be necessary if his other amendment were accepted. He is right to say that I am not aware of any specific regulations that would need to be brought in, if his amendment were accepted. But I need to have further thought on that.
As the noble Earl knows, subsections (7) to (9) are absolutely essential in preventing the work of the department coming to a halt the moment the Act is passed. We are in entirely different territory from some of the debates that have taken place in this House. This is a Bill which already sets out very strong safeguards for the things about which noble Lords are concerned. It limits certain disclosures to those in the public interest; and it requires new categories to be added only if there is an affirmative resolution of the House. Surely that is enough. I urge the noble Earl not to press his amendment.
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