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Lord Campbell of Alloway: My Lords, I shall not take the advantage, because the noble and learned Lord has, yet again—not wilfully—totally misinterpreted and misunderstood the principle behind this matter and the comments of the committee. I shall say no more.

Lord Goldsmith: My Lords, I was not pressing the noble Lord to intervene if he had not wished to. I emphasise that I have listened carefully to noble Lords' concerns, as I have throughout the passage of the Bill. We have gone a long way to meet the concerns that have been expressed in relation to confidentiality in a number of ways.

I wish to make a final and important point of substance. We do not differ in principle about the importance of imposing safeguards by law as to the way that information may be used. The difference between us, which I have some difficulty in understanding, is that we say on the on the face of the Bill that the Data Protection Act applies. That carries with it important statutory obligations. It carries with it the obligation that the principle of fairness shall apply in the use of information under the Data Protection Act. It carries with it the obligation to comply with the obligations of necessity. We do not say on the on the face of the Bill that the Human Rights Act applies, because, of course, it does. That is common ground between us. Actually, in a sense, we do say in the Bill that the Act applies, because I have signed a certificate saying that the Act, in my opinion, is compatible.

We do not have any disagreement that the Human Rights Act imports a requirement by law that the type of sensitive and confidential information with which the noble Lord is concerned may be an intrusion on privacy only if it is justified in accordance with Article 8(2). That means that it must be proportionate and for one of the limited purposes.

My real point is that, given that the law requires the Data Protection Act principles of necessity and fairness and the Human Rights Act principle of proportionality for limited purposes, and given that
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we have gone even further on the face of the Bill with public interest disclosure, are we not doing enough to say on the face of the Bill how information may be used? Perhaps I may respectfully suggest that the noble Lord has more than fulfilled the task that he set himself of drawing to the attention of this House the observations of the Joint Human Rights Committee.

We believe that we are achieving what is needed in order to safeguard taxpayer confidentiality in the use of the information. We believe that that is done in the way that the Bill presently provides and that there are—this is why I drew attention to it—difficulties with the noble Lord's amendment. I entirely take the point made by the noble Earl, Lord Northesk, that the noble Lord, Lord Campbell of Alloway, sought to deal with other difficulties in the way that he put the amendment forward, but it still does not meet the objective.

Therefore, in what I hope is a spirit of acceptance of the noble Lord's intentions, reassurance to the noble Lord about what we have been seeking to do and, in particular, reassurance that we agree with him, as I have agreed with all noble Lords from the very start, about the importance of the use of this information by HMRC, I hope that he will not feel it necessary to press his amendment.

Lord Campbell of Alloway: My Lords, I do not want to take too much time over technical problems. This amendment is put forward for acceptance in principle. The principle is that, according to the requirements of the convention, a trigger clause is needed to introduce secondary legislation. I know that the noble and learned Lord does not agree with that for one moment and that he never has and never will, but that is the advice of the Joint Committee on Human Rights.

Therefore, there is not much object in picking at the form of the amendment, which in fact reflects the advice of the Joint Committee on Human Rights. It is not supposed to predicate or pre-empt the precise form of the regulation because that is a matter for the affirmation of Parliament. So, inevitably, if you look for a trigger clause, you do not find the detail, and there is none.

As for the principle, which is the main matter of contention between us, the point is simply that it is as plain as a pikestaff from the reports of the Joint Committee on Human Rights that the approach of the noble and learned Lord the Attorney-General to having these safeguards in the Bill is an issue and that this amendment resolves that issue in accordance with the recommendations of the committee. In those circumstances, I have no alternative but to test the opinion of the House.

8.28 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?
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Their Lordships divided: Contents, 43; Not-Contents, 90.

Division No. 1


Attlee, E.
Bridgeman, V.
Brookeborough, V.
Byford, B.
Campbell of Alloway, L. [Teller]
Cope of Berkeley, L.
Courtown, E.
Craigavon, V.
Dixon-Smith, L.
Dundee, E.
Fraser of Carmyllie, L.
Freyberg, L.
Geddes, L.
Gray of Contin, L.
Hayhoe, L.
Higgins, L.
Howell of Guildford, L.
Kimball, L.
Kingsland, L.
Luke, L.
Mancroft, L.
Marlesford, L.
Mayhew of Twysden, L.
Monson, L.
Morris of Bolton, B.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E. [Teller]
O'Cathain, B.
Perry of Southwark, B.
Plumb, L.
Renton, L.
Roberts of Conwy, L.
Rogan, L.
Seccombe, B.
Selsdon, L.
Shaw of Northstead, L.
Skelmersdale, L.
Swinfen, L.
Thomas of Swynnerton, L.
Ullswater, V.
Waddington, L.


Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Borrie, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter of Coles, L.
Clark of Windermere, L.
Clinton-Davis, L.
Crawley, B.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
Lea of Crondall, L.
Leitch, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maxton, L.
Merlyn-Rees, L.
Morgan, L.
Morgan of Drefelin, B.
Patel, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rosser, L.
Rowlands, L.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Snape, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Walpole, L.
Warwick of Undercliffe, B.
Whitaker, B.
Wilkins, B.
Williamson of Horton, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

5 Apr 2005 : Column 668
8.38 p.m.

Lord Goldsmith moved Amendment No. 6:

The noble and learned Lord said: My Lords, I believe that government Amendments Nos. 6, 7, 9 to 13 and 20 achieve what the noble Earl, Lord Northesk, and the noble Baroness, Lady Noakes, seek. They also improve on their amendments in a number of ways. For those reasons I shall resist Amendments Nos. 8 and 14 to 19.

The group of amendments, Amendments Nos. 8 and 14 to 19, put forward by the noble Earl and the noble Baroness propose to freeze the draft regulations in their first exposed form and to write them into the Bill as the first description of public interest disclosures for HMRC.

Throughout the passage of the Bill, both here and in the other place, there has been a great deal of debate on the safeguards surrounding public interest disclosures in terms of how they are made, in what circumstances and under which controls.

Nothing in Clause 20 will override the requirements of the ECHR. There is also a need to strike the right balance between the effective operation of public interest disclosure provisions for HMRC with the ability for full and proper parliamentary scrutiny of that process. I recognise the clear preference of noble Lords for a solution that places what would have been contained in the initial set of regulations in the Bill and I advise noble Lords that I am now prepared to move a considerable way towards accommodating that clear wish.

The most important question that I have faced is whether placing the provisions in the Bill would compromise operational imperatives. I am satisfied that it would not. I have also taken on board the view of the Joint Committee on Human Rights that there should be greater transparency by including the regulations in the Bill—a point pressed by the noble Earl both, if I may put it this way, as litigant in person and, earlier, when he had counsel in Grand Committee.

However, the noble Earl's amendments tabled on Report threw up some technical problems. In some cases, they would freeze in the Bill the text of the regulations as they were at a draft stage. So I have tabled a similar amendment faithful to the principle of what the noble Earl, Lord Northesk, and the noble Baroness, Lady Noakes, want to achieve, but which addresses the technical points and makes the legislation workable.

Perhaps I may put on record a point of clarification regarding terminology used in the text of Amendment No. 13:

5 Apr 2005 : Column 669

covers both formal international treaties and memoranda of understanding entered into by or on behalf of Her Majesty's Commissioners for Revenue and Customs with public authorities abroad for the purposes of securing the due administration of their respective customs laws.

Amendments Nos. 6 and 7, 9 to 13 and 20 improve on the amendments of the noble Earl and noble Baroness, in that they provide for the regulations to be placed in the Bill while also providing for the most appropriate regulation-making power. So the text of the public interest disclosure regulations will be put on the face of the Bill; a regulation-making power will be introduced which does not confer a Henry VIII power on the Treasury. We debated that last time. Any future regulations will be tightly drawn in terms of the description of public interest being narrowed to specific circumstances—crime, national security, health and safety. In that way, I believe that we have made it all the clearer that there is no case for the super-affirmative procedure.

In the circumstances, I invite agreement with the Select Committee on Delegated Powers and Regulatory Reform that the normal affirmative procedure is the right way to proceed here. The government amendments mean that we can dispense with the accelerated affirmative procedure for the first set of regulations. That conforms with the noble Earl's amendment on Report. We have corrected the issue of the offence of wrongful disclosure by making that apply where there is onward disclosure without the commissioner's consent.

I hope that that sufficiently meets the concerns raised. I am grateful for our discussions on the matter. Now that I have tabled these amendments and said what I have on the record, I hope that we can reach a consensus on the government amendments without need for other amendments to be pressed.

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