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Clause 15 imposes statutory duties of confidentiality in respect of personal customs information and Clause 16 sets out the limited and strictly prescribed exceptions to those duties. The provisions in these clauses apply only to customs information acquired by the UK Border Agency from sources other than HM Revenue and Customs or the Revenue and Customs Prosecutions Office. There is a separate confidentiality framework for the use and disclosure of information provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office, which is set out in existing legislation including, in particular, the UK Borders Act 2007.

4.45 pm

Baroness Hanham: Does the existing legislation also include the Commissioners for Revenue and Customs Act 2005? I was looking at that the other day, as quite a lot of the detail in this Bill relates to it. A huge amount of clauses seem to be relevant to the powers that are being passed over, but the detail does not appear in this Bill. There are no amendments down for Clause 17—there is just the stand part—but the noble Lord, Lord Avebury, has already raised his concern about this aspect of the information that is likely to be passed and the exceptions to that. Will the Minister go

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a little more deeply into what information this is likely to be and its disclosure? First, the information will be held—it is another situation where we will have a database with a lot of personal information held on it—and, secondly, it will be used on an evidential basis if that is required. The noble Lord, Lord Avebury, might want to expand on his comments. These two clauses carry quite a lot of implications for people who find themselves brought up short by an officer of Revenue and Customs.

Baroness Miller of Chilthorne Domer: Perhaps it would be useful if I were to ask my question now, rather than interrupt the Minister again. The noble Baroness, Lady Hanham, is quite right about this clause, which is of great concern to us, too. The Minister was saying that Clause 16 is very narrow and that only in a small number of cases would this data sharing take place. The difficulty is that the Government have included a let-out clause that talks about the prevention of crime. I am sure that we shall examine that in more detail, but it is hard to see how it is a narrow function, as an official could claim that almost anything was done to aid the prevention of crime. How does the Minister think that including such a widening and enabling phrase helps to keep the clause sufficiently narrow to give us any hope at all?

Lord Brooke of Sutton Mandeville: I am in no way seeking to piggy-back on the Front Bench of either opposition party, but I have another technical question. The Minister can rule it out of order if he wishes. Twenty years ago, one problem of friction between the commissioners and the unions was that working in customs positions at ports was an attractive job and there was a desire that the posts should, if possible, be filled on the basis of Buggins’s turn. On the other hand, there were quite clearly customs officers—other than those who were good dog handlers and achieved great results with the assistance of highly intelligent spaniels—who had a peculiar knack for identifying people who were behaving in a criminal manner. Given the importance of what we are debating, will identifying people who have the knack take preference over appointing those to the office simply on the basis of Buggins’s turn, or has that already happened?

Lord West of Spithead: I am sorry, but would the noble Lord be so kind as to repeat the final question?

Lord Brooke of Sutton Mandeville: I was simply asking, especially because of the importance of the issue of the defence of the realm, whether customs officers are still appointed to those positions, which were attractive to people within the profession, on the basis of Buggins’s turn or whether there will be an emphasis on identifying people—apart from the dog handlers—who have superlative skill in identifying criminals.

Lord West of Spithead: As far as I am aware, within the new structure we will try to avoid Buggins’s turn and go for the best people. Perhaps I may take more advice in detail and come up with an answer.

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The type of information that UKBA will handle and disclose will be persons stopped at ports and airports who are smuggling goods and legitimate travellers’ payment of customs duty at the red channel. UKBA officers may disclose certain interceptions to trading standards—for example, goods that may pose public health risks. Those sorts of things will be used as statistical data primarily, but personal customs information cannot be exchanged or used. I hope that that clarifies the point.

We had reached Clause 16. As I said, where personal customs information has been disclosed, recipients may not further disclose that information unless they obtain the consent of a relevant official or do so in accordance with the limited and specific circumstances set out in the clause. For example, a designated customs official could disclose information to a police officer in relation to a matter of national security in accordance with the Clause 16 exceptions. The police officer could then lawfully further disclose the information to a third party, such as the security and intelligence agencies, provided that the disclosure was also made in accordance with one or more of the Clause 16 exceptions.

The test in respect of personal customs revenue information is stricter still. Under Clause 17, before a person can disclose such personal information they must ensure not only that the disclosure is being made for one of the reasons prescribed in the Clause 16 exceptions but that it does not contravene a restriction imposed by the Commissioners for Her Majesty’s Revenue and Customs.

Clause 18 creates a similar criminal offence to that of unlawful disclosure of personal customs information under the Commissioners for Revenue and Customs Act 2005 to cover the Home Office and the UK Border Agency. That means that a relevant official of the Home Office, the Secretary of State for the Home Department or any Minister of the Crown in that department or other person who discloses personal customs information in breach of Clause 15(1), Clause 15(2) or Clause 17 will commit a criminal offence.

Baroness Hanham: To pick up on Clause 18 and the offence of wrongful disclosure, presumably it would be wrong to disclose that information to anyone beyond those who have been identified in Clause 16. That disclosure can be made only with the permission of what is deemed a relevant officer, who is presumably over and above the officer whom we are discussing. Is an offence of wrongful disclosure committed if the information is given to an outsider, a newspaper or a solicitor acting for the defence or for someone being charged? Can the Minister steer us on where the clause will have effect?

Lord West of Spithead: If any of the rules in Clause 16 on exceptions is broken and the information is then given to anyone else, that breaks the rule and therefore the person will be liable to—I forget exactly the penalties—something like a period of up to two years’ imprisonment or an unlimited fine. It is not just the people at the border who can be hammered for that

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but those further up the chain who may get hold of the information, who would face the same penalty. That is partly to enforce how securely we want that information to be kept.

Clause 19 puts it beyond doubt that nothing in Clauses 14 to 17 authorises the making of a disclosure that contravenes the provisions of the Data Protection Act 1998 or as prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 19 serves three important purposes. First, it ensures that the Freedom of Information Act cannot be used to obtain confidential taxpayer information. Secondly, it provides that none of the exceptions to the duties of confidentiality created by this Bill will override the protections afforded to personal information in other legislation, including the Data Protection Act. Thirdly, it secures equality of treatment of personal customs information under the Freedom of Information Act, no mater where it is held by HM Government.

As a digression, I agree with the noble Baroness, Lady Hanham, that sometimes the references to these other Acts are difficult to follow. I have spoken to my team and in future we will try to produce something that has a composite. I understand how difficult it is for others to follow this; it is sometimes difficult for me as well. I will try to ensure that we do better in future.

Sections 40, 41 and 42 of the UK Borders Act 2007 set out the confidentiality framework applied to the use and disclosure of information that is provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office. Clause 20 introduces two new sections, Sections 41A and 41B, for insertion after Section 41 of the UK Borders Act 2007.

Her Majesty’s Revenue and Customs already shares customs information with the Secretary of State for her immigration purposes. Section 41A permits disclosure of customs information to those responsible for the discharge of customs functions by the UK Border Agency or any person acting on its behalf with information for use in discharge of customs functions exercisable by the recipient. In particular, this will enable those staff who currently work for HM Revenue and Customs and who will soon transfer to the UK Border Agency to continue to receive relevant information for the discharge of their customs functions. Section 41B, meanwhile, sets out the specific circumstances in which those who receive customs information supplied under new Section 41A may themselves disclose it to a third party. Wrongful disclosure of such information to a third party will be subject to the criminal sanction prescribed in Section 42 of the UK Borders Act 2007.

Clause 21 amends Section 36 of the Immigration, Asylum and Nationality Act, which imposes a duty to share information relating to persons or goods crossing the frontier between the police, HM Revenue and Customs and the Secretary of State. The amendment effected by this clause ensures that the duty under Section 36 reflects the fact that the UK Border Agency will in future exercise customs functions. Information is, of course, an essential tool in support of law enforcement and national security. It is also key to the agency being able to secure the optimum deployment of its resources across all its functions—noble Lords

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have referred to those difficulties, such as small ports and other areas—helping it to deliver real business benefits. We are seeing already what can be achieved.

Clause 22 provides that the Secretary of State may by order apply any provision of the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 that relates to the investigation of offences or the detention of persons by police officers to investigations conducted or persons detained by designated customs officials or immigration officers.

Clause 25 provides for the sharing of facilities and services between Her Majesty’s Revenue and Customs and the UK Border Agency. In future, the principal responsibility for the exercise of customs and revenue functions at the border will rest with the new border force rather than with HM Revenue and Customs, and a number of HM Revenue and Customs staff will also transfer to that force. Accordingly, specific provision is needed to facilitate the transfer to the Home Office of the rights, powers, duties and liabilities under the contracts that Her Majesty’s Revenue and Customs currently has with those staff due to transfer.

Clause 26 amends Section 48 of the UK Borders Act 2007, which established the office of the Chief Inspector of the Border and Immigration Agency, the forerunner of the UK Border Agency, and Clause 27 gives the Secretary of State power to make regulations to confer functions on Her Majesty’s Inspectorate of Constabulary, the Scottish inspectors and the Northern Ireland inspectors in relation to those with responsibility for the exercise of immigration and customs functions by the UK Border Agency.

Section 41 of the Police and Justice Act 2006 provides the Secretary of State with a power to make regulations conferring functions on the Independent Police Complaints Commission in relation to the exercise by immigration officers and officials of the Secretary of State of specified immigration and asylum enforcement functions. Clause 28 enables the Secretary of State to further extend the functions of the IPCC to inspect in the future any contractual services provided in relation to the discharge of those enforcement functions. The chief inspector provides an external review, independent of the UK Border Agency. Currently, that remit applies to immigration, asylum and nationality functions only. Clause 26 will allow the chief inspector to look at the full range of functions exercised by the new border force. This clause also specifies those functions that the chief inspector shall monitor and report on only if directed to do so by the Secretary of State. Allowing HM Chief Inspector of Prisons, HM Inspector of Constabulary, the Scottish inspectors and the Northern Ireland inspectors to continue to have oversight of removal centres, short-term holding facilities and detention facilities will ensure inspection by inspectors with the right experience and expertise.

I will deal with other provisions covered in Clauses 29 to 32 as a group, despite their variety. Clause 29 enables the Attorney-General, if she considers it appropriate, to assign functions by order to the Director of Revenue and Customs Prosecutions to institute or assume the conduct of criminal proceedings in England

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and Wales, or to provide legal advice relating to a criminal investigation of a kind specified in the order by a person to whom this clause applies.

5 pm

Baroness Hanham: The Minister is kindly going through all the clauses not knowing where I might challenge them on a clause stand part debate. I have been letting him drift on because it is nice that he is able to read out his brief, but perhaps I may pick up on a couple of points that I would have made during a clause stand part debate.

Clause 29 seems to follow more or less exactly the provisions in the Commissioners for Revenue and Customs Act 2005, when those powers were given to the commissioners. Are there any differences here? When legislation is amended or chunks of it are taken out in new legislation, I think that it is beyond the wit of most of us to get into a detailed examination of the legislation it has come from. I have looked at the 2005 Act and I want to be clear about Clause 29 in that the power here is to undertake the prosecution of offenders. Would that power extend to the Director of Revenue and Customs being able to bring in lawyers and barristers, or would the people dealing with such cases come from in-house? Are these matters contracted out for prosecution purposes or are they always handled internally? I ask that because subsection (2) gives a list of the people to whom subsection (1), which assigns the function of the institution of criminal proceedings, applies. Subsection (2) then delegates further from the Director of Revenue to others who are responsible for dealing with matters which obviously will go to court. It would be helpful to know where the buck stops in the institution of legal proceedings, and who then is brought in to conduct those legal proceedings.

Lord West of Spithead: I do not have that information at my fingertips. Perhaps I may await advice from the Box and then come back to the noble Baroness on those points. I am not absolutely clear on the specifics.

Clause 30 deals with the accounting of revenue collected by the UK Border Agency and Clause 31 provides the flexibility to meet any future changes in the revenue accounting arrangements set out in Clause 30. Clause 30 requires the Director of Border Revenue and the Secretary of State to pay any money received by way of revenue to Her Majesty’s Revenue and Customs in accordance with Treasury directions. The term “revenue” is defined for the purposes of Clause 30 to include all duties and taxes, penalties and the proceeds of forfeitures. This will include duties and taxes collected from passengers in the red channel and on goods imported in the post.

The current intention is that these moneys will be paid directly into Her Majesty’s Revenue and Customs existing bank accounts. The revenue collected is not available to the new border force to fund its operations and Her Majesty’s Revenue and Customs will be responsible for the payment of receipts into the Consolidated Fund, together with its other revenue receipts. Clause 31 provides flexibility for future changes in the revenue accounting arrangements set out in Clause 30.

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Clause 32 amends Section 21 of the UK Borders Act so that it applies to the UK Border Agency and to those persons who have principal responsibility for exercising customs functions at the border.

Clause 33 provides an order-making power for the Secretary of State to modify enactments. This provision will ensure that current and future legislation which is relevant to and necessary for the exercise of customs functions by the UK Border Agency is applied as appropriate. Specifically, the provisions will enable the Secretary of State, subject to consultation with the commissioners, in certain prescribed circumstances to modify and apply legislation to the relevant persons specified in the clause or to the exercise of functions by those persons. For example, the order may be used to apply legislation currently applicable to the Commissioners for Revenue and Customs and their officers to the Secretary of State, the Director of Border Revenue, designated customs officials, immigration officers or other officials of the Secretary of State.

Although Part 1 of the Bill provides for references in certain enactments to the commissioners and their officers to be construed, where appropriate, to include references to the Secretary of State and her officials or the Director of Border Revenue, these provisions cannot be used to modify the content of relevant enactments. Accordingly, Clause 33 is necessary to ensure that legislation currently applying to Her Majesty’s Revenue and Customs will in future apply, with any necessary and appropriate modifications, to the Secretary of State and her officials or the Director of Border Revenue. Clause 33 will also ensure that any terms in enactments, such as references to the offices of Her Majesty’s Revenue and Customs or to particular staff grades within that department, are applied appropriately to the Secretary of State and her officials or the Director of Border Revenue.

Lastly, Clause 33 requires the Secretary of State to consult the commissioners before making an order under the clause which makes provision in relation to a customs matter, whether general customs or customs revenue, or in relation to the exercise of a customs functions. As the order may amend primary legislation, it will be subject to the affirmative resolution procedure to ensure the appropriate level of parliamentary scrutiny.

Clause 34 provides for incidental, supplementary, consequential, transitional or transitory provision to be made by order. Such provision may be made where considered appropriate for the purposes of Part 1, or in consequence of that, or to give full effect to any provision made by or under that part. It is not possible to anticipate all of the areas in which such provision might be required, either now or in the future. This clause will provide the necessary flexibility to ensure that Part 1 of the Bill delivers all that it is intended to achieve and to respond to future developments in other areas which impact on the border force. This clause sets out the scope of the order-making power, and establishes that where the order amends or repeals primary legislation, it will be subject to the affirmative resolution procedure. Otherwise, as the order may deal only with incidental, supplementary, consequential,

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transitional or transitory matters, the negative resolution procedure will provide the appropriate level of parliamentary scrutiny.

Clause 35 makes further provision about subordinate legislation made under Part 1 of the Bill. It provides that, with one exception, the orders and regulations made under Part 1 of the Bill must be made be made by statutory instrument and establishes the scope of such instruments. This provision also establishes the parliamentary procedures to which orders and regulations, made under Part 1, are subject.

The clause makes clear that orders made under Clause 29, relating to the assign to the function of the Director of Revenue and Customs Prosecutions, are not made by statutory instrument and follow no parliamentary procedure. This approach is consistent with similar order-making powers already available to the Attorney-General, such as that found in Section 35 of the Commissioners for Revenue and Customs Act 2005, relating to customs prosecution, and Section 3(2)(g) of the Prosecution of Offences Act 1985, in relation to the assignment of functions to the Director of Public Prosecutions. Clause 36 provides interpretation of the terminology used in Part 1.

I am afraid that it was rather a long slog going through all of those provisions, but I hope that was useful, because I know that I will be answering some specific questions later. I hope it was of value; I think it was important. The amendments would not make our nation and people safer. Indeed, the turmoil caused would actually make our country less safe, while the detailed work that is already underway and happening is making us safer.

I hope that the noble Lord and noble Baroness will feel able to withdraw their amendments.

The Chairman of Committees (Lord Brabazon of Tara): After an hour and nearly 40 minutes, the amendment currently before the Committee is Amendment 2 as an amendment to Amendment 1 in the name of the noble Lord, Lord Avebury. The noble Lord must first decide what to do with his amendment and then we will move on to Amendment 1.

Lord Avebury: We are most grateful to the Minister for giving that detailed explanation of all the clauses that are subject to these amendments. We will take time to digest what he said but we will come back to our task of scrutinising the Bill in greater detail with much better information than we had before. I am delighted to be able to withdraw my amendment.

Amendment 2 ( to Amendment 1) withdrawn.

Baroness Hanham: I thank the Minister for going through that. It was a rather convoluted way of getting a pretty generalised debate on what is being proposed and identifying exactly how these officers are going to operate. I am grateful for that. A clear reading of Hansard before we come to the next stage will help us all to decide what we need to take forward.

I thank the noble Lords, Lord Dear and Lord Hylton, and the noble and learned Baroness, Lady Butler-Sloss, for their contributions on Amendment 1 and I acknowledge the amendment of the noble Lord, Lord Avebury.

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It is not the Opposition’s duty to complete legislation or to work out legislative requirements. The duty of the Opposition is to produce ideas for legislation and to see whether they work.

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