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:
"an international or other agreement of the United Kingdom or Her Majesty's Government", 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.