Commissioners for Revenue and Customs Bill

Part of the debate – in the House of Lords at 7:45 pm on 5th April 2005.

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Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 7:45 pm, 5th April 2005

My Lords, the amendment has a very limited application. It is limited to the use of confidential information and to Clause 17(1), which is the source of some problems. The subsection states:

"Information required by the Revenue and Customs in connection with a function may be used by them in connection with any other function".

The amendment is quite distinct and separate from amendments concerning disclosure of information, relating to Clause 18(2)(b), (c) and (d). In the view of the Joint Committee on Human Rights, those paragraphs are wholly satisfactory—but not Clause 17(1), with regard to the use in the circumstances.

The fundamental issue of contention between the noble and learned Lord the Attorney-General and myself is whether the safeguards proposed by the Bill, which reflect the advice of the Joint Committee on Human Rights, should have legal efficacy, according to law, under Article 8.2 of the convention, as proposed by the amendment, which in effect is a trigger clause for secondary legislation having legal efficacy. Is this not requisite to afford compatibility with the convention in this context, as to pre-assessment, prior authorisation and external oversight?

Before reading three or four extracts from the first progress report of the Joint Committee on Human Rights, which are strictly related to the matter, may it be said at once that all that that committee does is to advise both Houses on compatibility with the convention? That is objective advice, wholly devoid of any political motivation. Of course, it is but advice and it is open to either House to ignore it or reject it if they wish. The second progress report of the Joint Committee on Human Rights published on 2 February deals specifically with this at paragraph 1.17, which states that,

"there is nothing on the face of the Bill which sets out any criteria to guide decisions about the use for one purpose of information which has been acquired for another purpose, nor does it provide any procedural safeguards regulating the decision whether such use for a different purpose is necessary and appropriate in a particular case. The Explanatory Notes state that 'management controls ensure that the use of the information will be appropriate and proportionate'. Reliance on 'management controls' to guarantee the appropriateness and proportionality of using personal information does not satisfy the requirement that interferences with the right to respect for private life must be 'in accordance with the law'. In order to satisfy that requirement, the controls on the use of information must be legal controls, providing legally binding safeguards against improper use of information. We have therefore written to the Government asking for more detail about the 'management controls' designed to ensure that information is used appropriately and proportionately, and asking that better safeguards be set out on the face of the Bill".

Paragraph 1.18 of the report states:

"We would remind the Government that the onus is on it to specify the precise aims which are relied upon in Article 8(2) as justifying the interference with Article 8 rights".

Paragraph 1.27 of the report states:

"The Government rely— incidentally, the Government still rely on this. A copy of a letter arrived on my desk this morning dated 4 April

"on the fact that when making disclosures of confidential information, HMRC will still be under a duty to comply with both the Human Rights Act 1998 and the Data Protection Act 1998. While this is legally correct, in practical terms it does not provide an answer to the lack of effective safeguards for the reasons pointed out by . . . ('the Newton Report') in the context of that Act's provision for public bodies to disclose information to assist criminal investigations or proceedings, or to the intelligence and security agencies—

The protection offered by the Human Rights Act 1998 and the Data Protection Act 1998 seems to us to be illusory since the burden will lie on the individual to complain about the disclosure of their confidential information in circumstances where, almost by definition, he or she will be unlikely to know that disclosure has occurred".

Paragraph 1.28 of the report states:

"The applicability of both the HRA 1998 and the DPA 1998 is therefore no substitute for strong safeguards in the statutory scheme to ensure that the power to disclose confidential information about an individual, of which that individual will generally be unaware, is only exercised in circumstances where it is proportionate to do so".

Paragraph 1.29 states:

"Three important safeguards which are desirable in relation to regimes for the disclosure of confidential information are pre-disclosure assessment, prior authorisation and external oversight".

Paragraph 1.32 states:

"The Newton Report points out that prior authorisation safeguards have traditionally been considered particularly important when an individual is unlikely to know that such powers are being exercised against him . . . In our view the same applies in relation to the present Bill".

Paragraph 1.33 states:

"The Bill also makes no provision for independent external oversight of the disclosure regime".

That is not relevant to the use regime with which I am concerned.

That advice was confirmed very shortly by four references to the second report. Paragraph 1.7 of the 13th report of the Joint Committee on Human Rights states:

"We remain concerned, however"— a letter dated 10 February had been received which still maintained the attitude which the noble and learned Lord the Attorney-General maintains to this day—

"at the breadth of the discretion to share information internally as it is currently drafted in this Bill. The Bill provides that 'information acquired by the Revenue and Customs in connection with a function may be used by them in connection with any other function' . . . There are no statutory criteria to guide decisions about when information obtained for [one] purpose can be used for another, merely a very broad enabling provision appearing to make such use lawful".

Paragraph 1.8 of the 13th report of the Joint Committee on Human Rights states:

"Our main concern in this respect is to ensure that the legal framework, as set out in primary legislation, does not confer overbroad discretions to interfere with private life . . . In our view, such powers to share information internally should contain on their face the criteria to guide decisions as to whether the use of information obtained for one purpose can be used for another".

Having read that, you can see that in fact the drafting of the amendment intends to reflect the advice of the Joint Committee on Human Rights. It is that advice on which I rely and not on any interpretation that I seek to put on it.

One final factor is relevant. Although the culture of Revenue matters is wholly disparate from that of the practices of the Customs and Excise, the HMRC to whom Revenue matters are to be preferred will now have a merged prosecution service. I see certain noble Lords here with experience of such affairs who have expressed certain anxieties about that during the passage of the Bill. What it comes to is quite simple. Is not the question whether protection of the taxpayer, advised to be a requisite by the Joint Committee on Human Rights and as reflected in the amendment, is fair and reasonable? I beg to move.