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The Earl of Northesk: My Lords, once again, I express my thanks to the noble and learned Lord the Attorney-General. I am entirely satisfied that my amendments in this group are an inferior version of the Government's intention to place the draft regulations in the Bill, so I do not intend to move them. That being so, I have no hesitation in supporting and commending the amendment so eloquently moved by the noble and learned Lord. I should have preferred it if he could have added a little more information about some of the administrative procedures that the Government have in mind for HMRC, but I shall not pursue that issue too vigorously, bearing in mind the lateness of our proceedings. I merely repeat that I am extremely grateful to the noble and learned Lord.

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 7:

On Question, amendment agreed to.

Clause 20 [Public interest disclosure]:
 
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[Amendment No. 8 not moved.]

Lord Goldsmith moved Amendments Nos. 9 to 13:


"(b) it is of a kind—
(i) to which any of subsections (2) to (7) applies, or
(ii) specified in regulations made by the Treasury, and
(c) the Commissioners are satisfied that it is in the public interest."
Page 10, line 17, leave out subsections (2) to (8) and insert—
"(2) This subsection applies to a disclosure made—
(a) to a person exercising public functions (whether or not within the United Kingdom),
(b) for the purposes of the prevention or detection of crime, and
(c) in order to comply with an obligation of the United Kingdom, or Her Majesty's Government, under an international or other agreement relating to the movement of persons, goods or services.
(3) This subsection applies to a disclosure if—
(a) it is made to a body which has responsibility for the regulation of a profession,
(b) it relates to misconduct on the part of a member of the profession, and
(c) the misconduct relates to a function of the Revenue and Customs.
(4) This subsection applies to a disclosure if—
(a) it is made to a constable, and
(b) either—
(i) the constable is exercising functions which relate to the movement of persons or goods into or out of the United Kingdom, or
(ii) the disclosure is made for the purposes of the prevention or detection of crime.
(5) This subsection applies to a disclosure if it is made—
(a) to the National Criminal Intelligence Service, and
(b) for a purpose connected with its functions under section 2(2) of the Police Act 1997 (c. 50) (criminal intelligence).
(6) This subsection applies to a disclosure if it is made—
(a) to a person exercising public functions in relation to public safety or public health, and
(b) for the purposes of those functions.
(7) This subsection applies to a disclosure if it—
(a) is made to the Police Information Technology Organisation for the purpose of enabling information to be entered in a computerised database, and
(b) relates to—
(i) a person suspected of an offence,
(ii) a person arrested for an offence,
(iii) the results of an investigation, or
(iv) anything seized.
 
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(8) Regulations under subsection (1)(b)(ii)—
(a) may specify a kind of disclosure only if the Treasury are satisfied that it relates to—
(i) national security,
(ii) public safety,
(iii) public health, or
(iv) the prevention or detection of crime;
(b) may make provision limiting or restricting the disclosures that may be made in reliance on the regulations; and that provision may, in particular, operate by reference to—
(i) the nature of information,
(ii) the person or class of person to whom the disclosure is made,
(iii) the person or class of person by whom the disclosure is made,
(iv) any other factor, or
(v) a combination of factors;
(c) shall be made by statutory instrument;
(d) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(9) Information disclosed in reliance on this section may not be further disclosed without the consent of the Commissioners (which may be general or specific); (but the Commissioners shall be taken to have consented to further disclosure by use of the computerised database of information disclosed by virtue of subsection (7))."

On Question, amendments agreed to.

[Amendments Nos. 14 to 19 not moved.]

Clause 21 [Procedure for orders under Section 20]:

Lord Goldsmith moved Amendment No. 20:

On Question, amendment agreed to.

The Earl of Northesk moved Amendment No. 21:


"INFORMATION COMMISSIONER
(1) The Information Commissioner shall keep under review the exercise and performance of the powers and duties conferred or imposed by or under sections 17 to 24 by the persons on whom they are conferred or imposed.
(2) It shall be the duty of those persons on whom powers and duties are conferred or imposed by or under sections 17 to 24 to provide the Information Commissioner with all such information as he may require for carrying out of his duties as mentioned in subsection (1).
(3) The Treasury, after consultation with the Information Commissioner, shall provide the Commissioner with such resources as are necessary for the discharge of his duties under this section.
(4) After the first full year of operation of Her Majesty's Revenue and Customs, and as he feels necessary thereafter, the Information Commissioner must lay before Parliament a report about the carrying out of his duties under subsection (1)."
 
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The noble Earl said: My Lords, your Lordships will have noted that I have softened my original stance on this issue. Whereas previously I sought an obligation on the Information Commissioner to make an annual report on the operation of HMRC's disclosure regime, I have re-drafted the new clause to confine it to a report on the first full year of operation.

As I have already made clear, I am only too well aware that the Data Protection Act grants an appropriate power to the Information Commissioner to conduct a review should he deem it necessary. Indeed, as revealed by the letter from the Paymaster General to the chairman of the JCHR, that continues to form the substance of the justification given by the noble and learned Lord the Attorney-General for resisting the amendment. Like the JCHR, I hold to the view that, given the importance of taxpayer confidentiality to the integrity of the tax base, it is appropriate that a report on the first full year of HMRC's operation should be obligatory rather than discretionary.

A further motivation for the new clause is the way in which the role and functions of the Information Commissioner have expanded in recent years. Inevitably, exercise of the discretionary power under the DPA to report on HMRC will be subject to any resource and budgetary constraints that that increased—and increasing—workload places on the Information Commissioner. Accordingly, reliance on that route to proper oversight has about it the character of willing the ends but not the means. That being so the new clause addresses that at proposed new subsection (3) by requiring that adequate resources be made available. I beg to move.

Lord Goldsmith: My Lords, we have discussed these issues in Grand Committee. As the noble Earl knows, I remain unconvinced of the need to add further to the Bill in this area, but I will say something more on the record, which I hope will give him comfort.

External scrutiny of the department and its processes already exists. As the noble Earl knows, I believe that the scrutiny is robust and adequate to the task. The department will be subject to investigation by the Adjudicator, the Parliamentary Ombudsman, the National Audit Office, the Public Accounts Committee, the Treasury Committee in another place, the courts and, of course, the Information Commissioner, who has extensive investigative and reporting powers.

There will also be external scrutiny of the conduct of HMRC officers by the Independent Police Complaints Commission and Her Majesty's Inspectorate of Constabulary. Although some of those bodies scrutinise only complaints from members of the public, the National Audit Office, the Public Accounts Committee, the Treasury Committee and the Information Commissioner can investigate simply because they choose to do so, even where no particular complaint has been made.
 
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The Information Commissioner already has a good relationship with the departments; I drew attention to that previously. I re-emphasise just one point: he has never reported that either department has misused the information that it holds.

Those are the reasons for not wanting to go further in the Bill, but I can go a step further in meeting the concerns raised by the noble Earl. The arrangements for delegation that will apply to HMRC will enable a single commissioner to take on the important role of co-ordinating, checking and ensuring compliance with the Data Protection Act. That will provide, as I have indicated in correspondence, a clear nominated contact who will be responsible for dealing with the Information Commissioner on relevant matters. It will ensure that the Information Commissioner, in turn, has a direct route through to HMRC at the highest level, should he need to raise matters with it. So, they should be able in that way to discuss any developments or concerns with a knowledgeable individual with the ability to make quick decisions and act with authority.

I am sure also that the debate that has taken place here will not escape the attention of the Information Commissioner, who has the power to take such steps as he thinks appropriate, having regard to the circumstances. Although I cannot, on this occasion, go as far as the noble Earl would like, I hope that the identification of a nominated commissioner will reassure him that the new department will continue to take its obligations seriously, every bit as seriously as its predecessor departments have done. I hope that the noble Earl will accept that, together with the scrutiny in the legal and administrative safeguards that will apply to HMRC which I have identified, that is an appropriate framework and will not, as, I think, he indicated, press his amendment.


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