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The Earl of Northesk: My Lords, I rise to support the amendment proposed by my noble friend. Throughout our scrutiny of the Bill, he has been consistent in arguing the case for the principles of prior authorisation for and pre-assessment of the criteria to be applied to disclosure of taxpayer information. In so doing, he has sought to put in the Bill the legitimate concerns expressed by the Joint Committee on Human Rights, of which he is such a distinguished member.
Indeed, it is salutary to reflect that notwithstanding the frequency of the correspondence between the Paymaster General and its chairman, the JCHR remains of the opinion that in the interests of transparency, certainty and "foreseeability" some element of provision in this respect should appear in the Bill.
It is to the credit of my noble friend that at this late stage of the Bill he has moderated the terms of his amendment even though, as I understand it, the JCHR continued to favour a provision that would afford a measure of judicial oversight. Despite that, my noble friend has drafted a more limited and modest amendment that only requires regulations that,
"make provision as to criteria for pre-disclosure . . . of . . . sensitive confidential information obtained from the taxpayer".
Equally, I am well aware that the actions and operations of HMRC in respect of the disclosure regime will have to be compliant with both the Human Rights Act and the Data Protection Act. That is not, and never has been, the point at issue. Like the JCHR, I believe that there are voluble justifications, not least—and I hope that the noble and learned Lord the Attorney-General would agree—the importance of confidentiality to the integrity of the tax base in affording taxpayers degrees of certainty about the
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disclosure regime by ensuring that appropriate protections of their interests appear in the Bill. I support the amendment.
Lord Goldsmith: My Lords, just before I address the substance of the comments made by the noble Lord, I want to clarify one aspect of the information-sharing provisions in the Bill, which it would be useful to put on the record. The noble Lord referred to the Revenue and Customs Prosecution Office. Information from that office may be disclosed to HM Revenue and Customs under Clause 41(2)(b) for the purposes of any of HMRC's functions.
I am grateful for the explanation of the substance of the amendment and of what the noble Lord seeks to achieve. I understand his intention, but in any event I have some technical problems with the amendment, even before one comes to the intention. The amendment does not require regulations to be made before information may be used by HMRC. It does not connect with the other provisions in the Bill, so it would appear that the provision could simply rest on the statute book while HMRC properly carried out its functions and used information for a variety of purposes in accordance with the law, as is done at the moment.
If Parliament were minded to make regulations, there would remain something of a conundrum in discerning what they ought to address. The issues that Parliament is charged with addressing in the regulations are not clear in the draft. I see that the noble Lord proposes that:
but I respectfully suggest that it is unsatisfactory to state that without being clear about the detail that Parliament wants to be provided. The amendment does not say who should provide that authorisation or whether it is intended to apply in relation to all cases, or give criteria to identify in which cases it should apply. Although I respect what the noble Lord has in mind, it does not seem a satisfactory way of leaving matters at this stage in a Bill.
8.15 p.m.
I have the same problem with the proposal that:
because, in that, Parliament is not saying what sort of external oversight it has in mind, particularly given what has been said already on record about the external oversight that takes place. If we passed the amendment, we would be leaving it apparently entirely open either for the executive to make regulations that in some way touched on the requirements mentioned but without any detail, or—this worries me even more—to leave the debate on what Parliament had in mind for another day when the regulations came back. We would have the debate all over again.
I also have to say, again with great respect to the noble Lord, that he introduced the amendment on the basis that he was concerned with the use provision in Clause 17, not the disclosure of confidential information under Clause 18. However, the passages
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to which he particularly drew attention from the report of the Joint Committee on Human Rights were related to the provision on disclosure of confidential information rather than to the use provision.
Lord Campbell of Alloway: My Lords, with great respect to the noble and learned Lord, the passages to which I referred are strictly related to Clause 17(1), not to Clause 18. I do not want to argue with him if he wants to take another view. If he reads the passages again, he will understand.
Lord Goldsmith: My Lords, I do not say that in any sense to be disagreeable, but I noted the way that the noble Lord put it. I have an important point of substance that I hope that he will accept. Paragraph 1.22 in the most recent report states in terms:
I understand those to be the safeguards in the amendment—
"which in our view would make it more likely in practice that disclosures of confidential information under the Bill's provisions are compatible with Article 8 ECHR".
That is concerned with the disclosure of confidential information. It is under the section of the report that deals with disclosure. The section of the report that deals with use—the noble Lord read it out, but it is not the part that picks up the three safeguards to which he drew attention—states at paragraph 1.6 that the committee,
"found the Minister's response very helpful. We are reassured that there exist numerous procedural safeguards at the administrative level designed to ensure that information is only shared where both necessary and appropriate. We also accept the necessity for administrative level safeguards, giving concrete practical effect to the safeguards contained in the Bill, and that such detailed safeguards need not be spelt out on the face of the legislation itself".
It is absolutely right to point out that the committee goes on to say two things. The first is that it remains concerned at the breadth of the discretion in Clause 17(1)—the noble Lord drew attention to that. Secondly, it states in paragraph 1.8 that:
"It may well be that the administrative level safeguards supply this omission and make it clear that information is only to be shared internally if such use satisfies a test for proportionality which includes consideration of its necessity".
I read that out simply for these purposes and I noted the way that the noble Lord phrased the amendment. Particularly at this stage, in the Third Reading of the Bill, which we hope will soon become law—and we all support that—there should be no misunderstanding of the amendment. I remain in some doubt. It is not a doubt of principle, it is a doubt as to whether or not the noble Lord has, in saying that he is only concerned with use, picked up what the Joint Human Rights Committee says.
The point of substance, to which I draw warmly and respectfully his attention, is that amendments have been made as a result of the debate which has taken place, including the discussions that we have had in Grand Committee and on Report, which have put further safeguards in the Bill. The disclosure in the public interest, which, importantly, takes the matter
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outside the functions of Revenue and Customs, will now describe, if the House approves the amendment which I plan to move in a few moments, the types of disclosure that may be made. Importantly, it will include statements of the criteria—for example, in Amendment No. 13, if,
The reason for drawing attention to the fact that, in the view of the Joint Committee, this matter is concerned with the disclosure of confidential information is that I have been trying to assure the noble Lord that the amendments that we are making regarding confidentiality touch on his concerns.
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